A majoritarian basis for judicial countermajoritarianism
James R. Rogers and
Joseph Daniel Ura
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James R. Rogers: Department of Political Science, Texas A&M University, USA
Joseph Daniel Ura: Department of Political Science, Texas A&M University, USA
Journal of Theoretical Politics, 2020, vol. 32, issue 3, 435-459
Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why donâ€™t legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress.
Keywords: Countermajoritarianism; judicial review; legislatures; minority protection; separation-of-powers (search for similar items in EconPapers)
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Persistent link: https://EconPapers.repec.org/RePEc:sae:jothpo:v:32:y:2020:i:3:p:435-459
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