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The “countermajoritarian difficulty” was a central preoccupation for twentieth-century constitutional law scholars. Alexander Bickel, who coined the phrase in The Least Dangerous Branch, located that difficulty institutionally in the courts. Judicial review, he wrote, involved the “reality that when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.” In one of the most influential responses to Bickel’s argument, John Hart Ely asserted that “representation-reinforcing” judicial review poses no such difficulty. According to Ely, that form of judicial intervention carries out the Constitution’s commitment to democratic self-governance—a “constitutional development” that in his description had moved “continuously, even relentlessly” away from limits on “government by majority.” But what if Ely and Bickel were wrong—Bickel in supposing that the countermajoritarian difficulty was tied to the judiciary and Ely in supposing that our constitutional development has moved unidirectionally toward greater majoritarian democracy? In reality, the way our nation is constituted may be interacting with the way our Constitution was written to produce one of those periods of retrenchment in which we move once again towards government by minority. This article, originally given as the Jorde Lecture, explores how changes in demography are interacting with constitutional law—both structural features of how political power is allocated and recent Supreme Court decisions—to create a new countermajoritarian difficulty. Part I lays out the constitution of the American electorate. That electorate is changing demographically—becoming more racially and ethnically diverse, more geographically concentrated and homogeneous, and more divided, not only in its partisan affiliations, but in its values and its prospects for the future. Part II explains that some fundamental, hard-wired features of our Constitution—in particular, the Senate and the Electoral College—are assisting a shrinking white, conservative, exurban numerical minority to exert substantial control over the national government and its policies. Part III then shows that the current Supreme Court is countermajoritarian in a way that enables this entrenchment. Far from engaging in representation-reinforcing judicial review, the Court’s decisions contribute to “the ins . . . choking off the channels of political change to ensure that they will stay in and the outs will stay out” regardless of what the people would choose.
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