Counter-majoritarian difficulty
The counter-majoritarian difficulty (sometimes counter-majoritarian dilemma) is a perceived problem with judicial review of legislative (or popularly-created) laws. As the term suggests, some oppose or see a problem with the judicial branch's ability to invalidate, overrule, or countermand laws that reflect the will of the majority. The counter-majoritarian difficulty is often raised in discussions of United States constitutional law, particularly to discuss the powers of the three branches of the federal government of the United States. Origins Alexander Bickel, a law professor at Yale Law School, coined the term counter-majoritarian difficulty in his 1962 book, The Least Dangerous Branch. He used the term to describe the argument that judicial review is illegitimate because it allows unelected judges to overrule the lawmaking of elected representatives and thus to undermine the will of the majority. The problem stems from the understanding that a democracy's legitimacy arises from the fact that it implements the will of the majority (majoritarianism). Responses Majoritarianism is based on the view that a democracy can be defined by only its procedural aspects. However, the definition of democracy is contentious. The argument is often made that substantive rights must be protected in a democracy to truly have a democracy,