{"title":"A majoritarian basis for judicial countermajoritarianism","authors":"J. Rogers, J. Ura","doi":"10.1177/0951629820927784","DOIUrl":null,"url":null,"abstract":"Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don’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.","PeriodicalId":51606,"journal":{"name":"Journal of Theoretical Politics","volume":"32 1","pages":"435 - 459"},"PeriodicalIF":0.6000,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0951629820927784","citationCount":"7","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of Theoretical Politics","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1177/0951629820927784","RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"POLITICAL SCIENCE","Score":null,"Total":0}
引用次数: 7
Abstract
Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don’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.
期刊介绍：
The Journal of Theoretical Politics is an international journal one of whose principal aims is to foster the development of theory in the study of political processes. It provides a forum for the publication of original papers seeking to make genuinely theoretical contributions to the study of politics. The journal includes rigorous analytical articles on a range of theoretical topics. In particular, it focuses on new theoretical work which is broadly accessible to social scientists and contributes to our understanding of political processes. It also includes original syntheses of recent theoretical developments in diverse fields.
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