Document Type
Article
Publication Date
1-1998
Abstract
I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down a statute passed in procedurally valid ways by a democratically elected legislature," struck me as unhelpful.
Recommended Citation
Herzog, Donald J. "Up from Individualism (The Brennan Center Symposium on Constitutional Law)." Cal. L. Rev. 86, no. 3 (1998): 459-67.