Jacob Eisler* | 26.3 | Citation: Jacob Eisler, Polarized Countermajoritarianism, 26 U. Pa. J. Const. L. 665 (2024).

Read Full Article

 This Article identifies a radical transformation in constitutional law methodology: the central project of constitutional analysis has changed from offering value-neutral theories of interpretation to observing and critiquing conservative forces that undermine popular self-rule. This is most apparent in scholarly reactions to the Roberts Court’s refusal to strike down legislation that promulgates voter suppression, partisan gerrymandering, and abortion restrictions. Scholars treat these decisions to leave legislation standing as a direct assault on democracy, a distinction previously reserved for decisions that struck down legislation (such as Lochner v. New York). This new paradigm indicates a radical realignment in academic evaluation of judicial review, with a focus on substance rather than procedure. 

This Article illuminates this shift by observing scholars’ novel invocation of the ‘countermajoritarian difficulty.’ Widely recognized as the obsession of law professors for the past century, the countermajoritarian difficulty traditionally queries, why do non-accountable judges have authority to interdict decisions by elected representatives? The threat of far-right extremism has inspired constitutional law scholars to use countermajoritarianism to denote any political influence – the conservative-dominated judiciary, Republican legislatures, or polarized right-wing voters – that is perceived as exacerbating democratic backsliding. This changing use of countermajoritarianism portends a wider shift in constitutional theory. The classical approach to the countermajoritarian difficulty aspires to use general principles of constitutional analysis to reconcile independent judicial review with popular self-determination. This approach provides abstract explanations of constitutional interpretation and avoids openly committing to ideological or policy positions. Conversely, the new trend defines any threat to legitimate democratic self-governance as countermajoritarian. PCM constitutional theory thus takes as its starting point a set of substantive moral commitments. 

Polarized countermajoritarianism has a dramatic effect on doctrinal analysis. Traditionally, scholars invoke countermajoritarianism when courts strike down legislation. The new trend identifies it where courts allow legislation to stand but such inaction fails to protect democratic process against attacks from the far right. This Article posits that this radical shift in doctrinal analysis is a response to the loss of civic unity and democratic consensus in American politics. Polarized countermajoritarianism highlights the fragile condition of contemporary democracy but relinquishes the analytic clarity of classical countermajoritarianism––a tradeoff scholars and jurists must incorporate into future analysis. 

***

* James Edmund and Margaret Elizabeth Hennessey Corry Professor, Florida State University College of Law. Many thanks to the participants in the FSU Summer Faculty Workshop for their helpful comments, particularly Mark Seidenfeld, Jake Linford, Emily Spottswood, Erin Ryan, Michael Morley, Shi-Ling Hsu, Charquia Wright, Shawn Bayern, Rob Atkinson, Afroditi Giovanopoulou, and Nat Stern. For helpful discussion and comments, thanks to Erin O’Hara O’Connor, Brian Slocum, Billy Magnuson, Adam Lebovitz, Justin Sevier, Kelli Alces Williams, David Landau, Wayne Logan, and Gabe Katsh. This article is dedicated to the memory and honor of my father, David C. Eisler.