I. Internal Counter-Majoritarian Difficulty

The counter-majoritarian difficulty first identifies a problem internal to the majoritarian process. In short, this process would be incapable of reflecting the truly majority position of the citizens due to distortions that affect the electoral procedure. In this way, the majority principle that regulates elections would end up being tampered with and, consequently, the voting process would only represent the perspective of an artificial majority or, paradoxically, of a minority.

Electoral distortions jeopardize the integrity of the majoritarian process by breaking two fundamental links in the “chain of democratic choice”Footnote ⁷ : universal enfranchisement, which is formal and effective, and the equal weight of voters.Footnote ⁸ In this sense, the distortions here considered identify two different phenomena: Respectively, the exclusion of part of the electorate in violation of universal suffrage and gerrymandering as opposed to the equal weight of voters. The first distortion coincides with the creation of electoral barriers which prevent universal inclusion in elections, thus making them a prerogative disconnected from citizenship membership. Even if universal suffrage is not formally repealed, it is weakened by suppressive regulations such as restrictive voter-ID laws, documentary proof of citizenship requirements, poll closings, and voter purges. The second distortion instead refers to the manipulation of electoral districts by political forces to maximize the number of seats won in relation to the votes obtained. An example of this kind of abuse is the practice of gerrymandering, that is, the redrawing of electoral boundaries for partisan electoral purposes in such a way as to create artificial majorities in the legislative assembly. This practice is particularly problematic in majoritarian and mixed electoral systems, where a segment of legislative seats is allocated through first-past-the-post election. Pure proportional representation systems, by contrast, minimize the impact of gerrymandering. In all affected systems, however, the equal weight of votes is compromised as votes for opposition parties are intentionally nullified by their distribution in districts where the majority is predetermined.

In the United States, Tolson identifies these two distortions—electoral barriers and gerrymandering—as the “real” counter-majoritarian difficulty:

It would be erroneous, according to Tolson, to seek counter-majoritarian difficulties in the activity of the courts. Rather, it is the incumbent legislature that manipulates the vote to alter the formation of the future majority in legislative assemblies. By doing this, the legislature distorts democratic openness to new rulers and different choices, depriving majority principle of its aptness to make power contestable and decisions emendable. As an upshot, democracy no longer identifies majority governance as a “repeat play,” in which “[t]ime allows the losers of today the prospect of reorganizing and emerging as the winners of tomorrow.”Footnote ¹⁰

In a broader framework of analysis, Karlan also identifies the “new” counter-majoritarian difficulty in the distorted election of legislators. Such a distortion would precisely describe the inability of the majoritarian process to reflect the majority of citizens in the assemblies, that is, the counter-majoritarian nature of the majoritarian process: “[P]olitical power is a major source of a new countermajoritarian difficulty … Put squarely, our political system may be incapable of reflecting the new majority.”Footnote ¹¹

Tolson and Karlan summarize in this thesis the vast evidence with which the vote is distorted in the USA both with barriers—through suppressive regulations such as restrictive voter-ID laws, documentary proof of citizenship requirements, poll closings, and voter purges—and with gerrymandering.Footnote ¹² Exactly as Huq and Ginsburg noted with the diffusion of authoritarianism in democratic societies, the same is true with the electoral distortion at stake: This process underway in the United States does not only depict “idiosyncratic local storms” but also “climatic conditions of our political future.”Footnote ¹³ In fact, the erection of electoral barriers and the use of gerrymandering also occur in other advanced democracies and does not suggest an argument from contingency, limited to the American context. Footnote ¹⁴ Rather, internal counter-majoritarian difficulty stands as a possible progression of democracy’s deconsolidation.Footnote ¹⁵

II. External Counter-Majoritarian Difficulty

The counter-majoritarian difficulty identifies a problem external to the majoritarian process when it links the distrust in elective institutionsFootnote ¹⁶ to the belief that the solution is offered by the work of the courts. The counter-majoritarian difficulty becomes “external” because it describes the faith in the courts which, as counter-majoritarian institutions, are better equipped than elective institutions to ensure citizens expectations linked to justice and rights.Footnote ¹⁷ This second face of the problem develops Bickel’s first formulation of the counter‑majoritarian difficulty as courts’ opposition to the “will of representatives of the actual people of the here and now.”Footnote ¹⁸ In Bickel’s analysis, the prerogative of the justices to declare unconstitutional a legislative act is external, as it captures a correction that comes from outside the democratic process. This external nature justifies “the charge can be made that judicial review is undemocratic”Footnote ¹⁹ and “may, in a larger sense, have a tendency over time seriously to weaken the democratic process.”Footnote ²⁰ Judicial interference with democratic politics represents, in this prong of the counter-majoritarian difficulty, not only an alternative course of action to majoritarian democracy but also the paramount political means to protect and realize rights violated or forgotten by the legislatures.

The growing trust in the work of the judiciary and, with it, the need to look outside the majoritarian process is well depicted by Waldron:

The courts would be and, more importantly, should be the pivotal institution in realizing the complex of expectations linked to justice and rights established by the western constitutional tradition through the efficiency and soundness of their operations.Footnote ²² Trusting their counter-majoritarian power, a leading political role must be assigned to the courts in democratic societies. This approach is legitimized by the belief—captured by Waldron—that on matters of rights the electoral majority does not constitute an appropriate decision-making principle.

This thesis is defended in the philosophical panorama by both conservative authors and liberal theorists. An example of the first case is given by Vermeule, who proposes a natural-law scheme in which judges realize the common good inscribed in the law through “their own natural intuitions” to device the epikeia, or “the equity of the statute.”Footnote ²³ In this perspective, Vermeule maintains that political good cannot be derived from majoritarian voting procedure as “there exists an objective common good that transcends human will.”Footnote ²⁴ Accordingly, “the common good need not justify itself before the bar of democracy, but the reverse.”Footnote ²⁵

A case of liberal reading can instead be found in Dworkin. Dworkin interprets the power of judges to protect values which are not only a precondition for shaping the democratic order but, more importantly, constitute a higher substantive standard with which democracy must comply:

In Dworkin’s view, the judiciary maintains a substantive relation with democracy, making democracy’s decisions consistent with its inspiring ideal of dignity as right to equal respect and ethical independence.Footnote ²⁷ In this sense, the superior ability of the courts to reason on the moral principles enshrined in the constitution justifies, according to Dworkin, their leading political role to get democracy-serving interpretations of the law.

The tension between the judicial and legislative powers is therefore resolved, in this reading, to the benefit of the courts, which become political agents for realizing the values and interests of citizenship, thus assuming a representative role. On this point, Eisgruber argues that democratic decisions intersect interests and morality. For this reason, not only interests must be represented through elections, but also the ability and often even the inclination of people to put moral duty before interests. This second aspect of human agency is represented by the counter-majoritarian decisions of the courts.Footnote ²⁹

Even more decisively, Ferrara argues that the mandate of the courts is to represent the interests of all citizens, including those of future generations, while that of the legislature is limited to the representation of the electorate.Footnote ³⁰ In this sense, the external facet of the counter-majoritarian difficulty overturns Bickel’s original perspective, characterizing the legislature, rather than the judiciary, as responsible for a difficulty in ensuring citizens their rights and interests.

I. The Essentials of Political Constitutionalism

The counter-majoritarian difficulty arises from the tension between the political authority of the elected majority and the power of the courts to strike down its decisions. The complex of theories that can be grouped in the paradigm of “political constitutionalism” takes a highly critical point of view on this faculty of the judicial power, defending the need for the courts not to undermine the centrality of elective institutions. This centrality reflects the founding elements of political constitutionalism: i) political equality among citizens; ii) the presence of a profound and reasonable disagreement on the meaning and realization of constitutional rights, iii) participation regulated by the majority principle as the tool to temporarily resolve this disagreement.

Among the exponents of political constitutionalism, we find Griffith, Waldron, Tushnet, Kramer, Bellamy, and Ewing. Political constitutionalism develops the idea that the decision-making engine of democracy is contained in the majority principle as normative regulation of citizens’ political will. By emphasizing this aspect, this conception of constitutionalism adopts as a yardstick of its reflection the expression of people’s will through participation and majority rule. The concept of majority rule, as employed throughout this analysis, refers to the normative ideal that governs decision-making among equals.Footnote ³¹ From this perspective, political constitutionalism relies on a minimalist understanding of democracy, as Dunn articulates in his historical reconstruction of the democratic ideal: “[D]emocracy is itself a direct pressure on the will: a demand to accept, abide by, and in the end even submit to, the choices of most of your fellow citizens.”Footnote ³² By resorting to the majority, democracy realizes the constant need to decide on public problems, avoiding deadlocks while waiting for a broad consensus or unanimity. It also includes the live possibility of revising rules when the reasons underpinning them are no longer agreed,Footnote ³³ democratic rule being the collective self-government of equals.Footnote ³⁴

The centrality of egalitarian participation supported by political constitutionalists is based on deep disagreement as a fundamental feature of political space. Griffith, for instance, defines disagreement and conflict between members of the same society as inevitable. Disagreement and conflict are characteristic traits of the human condition because they derive from the dual nature—individual and social—which pushes us to develop interests linked to our individual identity and to contrast our desiderata with those of others.Footnote ³⁵ With a different background, Waldron instead conceptualizes disagreement as a key aspect of the “circumstances of politics” that leave every decision made within the reach of dissent and future corrections.Footnote ³⁶ Bellamy takes up Waldron’s reflection by insisting on the uncertainties in the interpretation of fundamental rights which rise to reasonable disagreements on their meaning and political implications.Footnote ³⁷

With this strong emphasis on disagreement, political constitutionalists affirm the centrality of citizens’ egalitarian participation regulated by the majority principle. Disagreement and the need to produce decisions on public problems legitimize the primary political role of citizens, who choose their representatives and determine the political line that they will follow through an egalitarian process, in which each point of view is equally considered and weighed. This account of constitutionalism is political due to the attention to the procedure that generates decisions on issues marked by disagreement. In this sense, constitutionalism’s concern to limit powerFootnote ³⁸ is interpreted by this political paradigm as the need to orient the entire system of rights and powers towards the citizenship as equal decision-makers. This aspect does not contrast, but rather realizes the need to control power, which must be responsive to the participation of citizens.Footnote ³⁹

With these premises, Waldron qualifies the political participation of citizens as the “right of rights” in the democratic context,Footnote ⁴⁰ defending the use of the majority principle as the criterion to determine the decisions to be made: “[T]he method of majority-decision attempts to give each individual’s view the greatest weight possible in this process compatible with an equal weight for the views of each of the others.”Footnote ⁴¹ Like Waldron, Bellamy also highlights the realization of political equality through a participatory system that guarantees equality of input to participants.Footnote ⁴² Kramer applies this perspective to the interpretation of constitutional law, including within the political power of popular participation and its elected officials the possibility of giving concrete form to the broad semantic spectrum of rights enshrined in constitutional documents.Footnote ⁴³

The theoretical approach of political constitutionalism leads these authors to reject the supremacy of the judicial power in matters of constitutional interpretation and to refuse courts’ prerogative to invalidate laws for violating the terms of the constitution.Footnote ⁴⁴ Political constitutionalism consequently has a very clear position in denouncing the counter-majoritarian difficulty understood in Bickel’s terms and in the “external” form considered above. The supremacy of the judiciary in the interpretation of constitutional rights collides with the centrality of political equality which is realized by the participation of citizens in public decisions regulated by the principle of majority. The authority of judges would thus tower over that of citizens and their representatives, violating the principle of political equality between all the citizens.

II. Political Constitutionalism as Participation of Equals

Political constitutionalism defines a normative paradigm focused on the egalitarian participation of citizenship, aiming to characterize the relationship between democracy and the judiciary, and consequently, offering insight into how to address the counter-majoritarian difficulty. The analysis above emphasized that political constitutionalism highlights the problematic nature of counter-majoritarian difficulty and opposes the judicial supremacy of courts. In the continuation of this analysis, attention will be given to two aspects of this conception regarding the role of political equality and the search for new participatory spaces for generating law. Moreover, the analysis will defend the possibility of deriving the core of political constitutionalism from the realization of law through the participation of equals. It is through this theoretical-normative core that the analysis will guide us in outlining a solution to the two forms of counter-majoritarian difficulty, while also tracing a potential path for the development of political constitutionalism itself.

At the outset of this section, we highlighted how political constitutionalism characterizes political equality as a benchmark that should guide the disputes between citizens in facing disagreement. Political equality justifies the rule of the majority—in other words, the rule of the majority is the translation of political equality into a decision-making rule. Using Waldron’s terminology, equality defines a procedure in which participants’ input reasons are weighted equally.Footnote ⁴⁵ Still, there is a second aspect. Political equality is not only the substance to the majoritarian principle; it also constitutes a limit on the majority itself. Majority rule combines equality and agencyFootnote ⁴⁶ —or more precisely, it embodies the principle that all decision-makers act as equal agents in the political sphere, maintaining this status whether they prevail or are defeated. For instance, it would be inconsistent with the framework of political constitutionalism to disenfranchise a minority based on a majority vote. Such a decision would violate political equality as both a foundation and a prerequisite for deciding through the majority, thus exceeding the normative scope of the majoritarian principle. Waldron himself emphasizes this point, referring to equality as a prerequisite for applying the tenets of political constitutionalism.Footnote ⁴⁷ Suppressing political equality while invoking the majority creates a paradox similar to the effort of Baron Munchausen, who saves himself from drowning by pulling up on his own hair. The rule of the majority, in short, is parasitic upon equality and cannot decide upon it.Footnote ⁴⁸ From the perspective of political constitutionalism, the political equality of citizens as decision-makers is the core that democracy must never lose and the main rationale of its legitimacy.Footnote ⁴⁹

Besides political constitutionalism’s valorization of equality, a second element arises that concerns the value of participation. This point can be explored by examining the development of political constitutionalism. Goldoni and McCorkindale argue that political constitutionalism has developed in three waves. The first defined the features of the political constitution; the second defended the legislature from the growth of judicial power; while the third and most recent inaugurated a reflexive phase on the nature of the political around which this form of constitutionalism gravitates.Footnote ⁵⁰ As Goldoni and McCorkindale explain, “[T]he third wave appears to be much less concerned by the rise of judicial power and juristocracy and instead is more focused on analyzing the circumstances which make possible the emergence, the development and the preservation of a political constitution.” Footnote ⁵¹

This reflexive wave, the authors continue, leads political constitutionalism to reflect on the nature of the political, on its capacity to create power.Footnote ⁵² This reflection involves, using Loughlin’s terminology, investigating the ways in which the political can “generate common understandings, practices, and norms, and strengthening the authority of its worldview through the medium of right and law.”Footnote ⁵³ This reflexive tension takes on a particular form within the boundaries of the democratic state. Within this perimeter, the task is to clarify the conditions that enable the egalitarian participation of citizens to produce laws and rights, to find “the place where reflexivity can best be realized,”Footnote ⁵⁴ and to “multiply chances of political participation, and for the expression of opinions.”Footnote ⁵⁵ Political constitutionalism, from this perspective, is defined by its structural focus on the channels through which political power can generate law in participative manners. In the democratic state, this tension becomes a focus on the solutions and structures through which the egalitarian and reflective participation of citizens can contribute to the generation of rights and rules in society.

In sum, the baseline for this potential development of political constitutionalism consists of two essential elements: the preservation of equal agency among all participants and the ongoing creation of participatory spaces for law generation. These elements establish participation of equals as the theoretical-normative core through which political constitutionalism addresses both counter-majoritarian difficulties and the reflexive search for new arrangements to generate law through participation. Simply put, the conceptual core of political constitutionalism also identifies the regulative ideal for hypothesizing the most appropriate institutional form that such a conception should assume.Footnote ⁵⁶ By focusing on equal participation as political constitutionalism’s foundation, we can institutionally address the dual nature of the counter-majoritarian difficulty: implementing strong judicial protection of political equality for the internal prong while favoring weak judicial review and legislative override for the external one. Furthermore, the distinction between these two types of counter-majoritarian difficulties supports a hybrid institutional arrangement that accommodates political constitutionalism’s reflexive pursuit of new forms and possibilities.

I. The Judicial Protection of Political Equality

The first form of counter-majoritarian difficulty emerges from inability of the electoral process to be truly majoritarian due to electoral distortions, such as electoral barriers and gerrymandering. These distortions conflict with the principles of political constitutionalism because they both undermine its normative core—participation of equals. Electoral barriers violate the principle of “participation of equals” by denying voting rights to specific groups of citizens, directly discriminating against them through exclusion from the political process. In contrast, gerrymandering preserves voting rights but undermines equal influence through strategic redistricting.

These distortions arise from the legislature’s actions. Legislators try to escape majority control by manipulating the universality of suffrage and the equal weight of votes. Consequently, a critical contradiction emerges: The institution elected through an egalitarian, majoritarian, and participatory process actively works to undermine the process that legitimizes its rule.Footnote ⁵⁷ The fight against these electoral distortions—barriers and gerrymandering—cannot, therefore, depend on the very institution that created them. This point is not simply grounded in prudential reasons; rather, it is normatively implied by political constitutionalism’s commitment to political decision-making as the participation of equals. In a nutshell, the preservation of political equality transcends the decision-making domain of the majority as the latter depends on the former and not the opposite.

Consider a scenario in which a parliamentary majority, Group A, votes for a tax law that a minority, Group B, opposes. This case reveals that the majority is not equivalent to Group A as a subject, but rather represents a threshold that Group A reaches and Group B does not. Attaining this threshold grants Group A the authority to make decisions affecting both groups and their respective constituents. Throughout this participatory process, the fundamental equality binding all parties—members of both groups and their constituents—remains intact. In subsequent elections, the majority may include new members who previously aligned with Group B’s positions.

Now, let us envision a scenario where majority A intervenes not on taxes, but on the rules of access to participation—for instance, regulating suffrage or gerrymandering—aiming to crystallize itself and its respective constituents as the majority and B as the minority. In this second case, the bond of equality among all parties would dissolve, and A’s authority would stem not from equality but from the strength of its position. In Waldron’s terms, the majority would become what it cannot be: iudex in sua causa, that is, “the use of the majoritarian method of decision-making implies that a particular faction in society was simply invited to ratify its own position.”Footnote ⁵⁸ This dynamic does not occur in the first case, where the majority represents a threshold that equal participants must reach to make temporary decisions, such as tax policies. Yet it does occur in the second case, when the majority, as a constituted entity, uses its position of power to undermine fundamental political equality and maintain its decision-making authority by controlling the formal conditions that regulate the achievement of majority as a normative threshold.

Although not typically adopted by political constitutionalists, a judicial approach to procedural rules governing the formation of legislative majorities is fully consistent with this legal framework’s aim to safeguard the participation of equals and thus warrants consideration. Under this interpretation, political constitutionalism might move toward a judicial solution to the internal counter-majoritarian difficulty by entrusting the judiciary with safeguarding the participation of equals as the fundamental substrate of democratic institutional organization. Courts can resolve the internal counter-majoritarian difficulty by shielding the electoral process from manipulation and, in doing so, safeguarding the core principles of participation, equality, and majority rule—in essence, preserving the fundamental concept of the “participation of equals.”

The protection of political equality within the political process can be ensured by a non-majoritarian institution capable of invalidating the manipulations that elected representatives might implement to favor their own re-election. Judicial intervention thus preserves the full political potential of the “participation of equals,” whereby citizens maintain control over the actions and mandate of legislators and, more broadly, direct the trajectory of social change through their electoral choices. This point is developed in Ely’s theory and can inform political constitutionalism’s use of judicial review. Ely is in sync with political constitutionalists in emphasizing the centrality of elected representatives for resolving political disagreements and, on this basis, advocates a “participation-oriented, representation-reinforcing”Footnote ⁵⁹ approach to democracy. In this framework, Ely argues that the courts need to clear the channels of political change, thus using their power of review when incumbent officials suppress voices or votes.Footnote ⁶⁰

The aim of Ely’s work is the defense of a constitutional anti-trust conception of adjudication, correcting distortions of the political market to avoid the formation of political monopolies able to impede change and marginalize minorities.Footnote ⁶¹ In this view, Ely’s argument outlines a “fair majoritarianism,”Footnote ⁶² justifying judicial intervention against the manipulation of equal citizens’ participation regulated by majority rule. A fair electoral process, Ely claims, is the only place for the “selection and accommodation of substantive values.”Footnote ⁶³ In fact, Ely admits the possibility of an interventionist court not to affirm values, “but rather by a desire to ensure that the political process—which is where such values are properly identified, weighted, and accommodated—was open to those of all view-points on something approaching an equal basis.”Footnote ⁶⁴ The necessity of recognizing judicial supremacy occurs, as we will examine more thoroughly later in this section, solely in procedural matters. In this Ely’s argument, one discerns the profound resonance with the mission of political constitutionalism. Granting the courts supremacy in safeguarding the political process secures the principle of majority rule in a participatory process aimed at managing disagreement among equals.

Gardbaum revisited the Elyean approach, advocating for the key role of the courts in defending the integrity of the democratic process and, with it, its responsiveness to people’s participation. Gardbaum broadens Ely’s advocating judicial intervention to supervise the electoral procedureFootnote ⁶⁵ and, more broadly, “all the processes by and through which public power is allocated, exercised, and held to account.”Footnote ⁶⁶ Following Ely, Gardbaum argues that “certain types of acts and outcomes are impermissible because they threaten to displace, corrupt, or undermine the democratic political process, and here stronger forms of review may be necessary.”Footnote ⁶⁷ In this view, constitutions empower courts to protect democracy from procedural malfunction and distortions. The courts’ review power fights back the attempts of elected representatives to manipulate the majority principle on which they depend in their favor. One might argue that the Elyean approach could justify stronger protection of the electoral process by courts, advocating judicial intervention to promote “participation of equals” in other procedural domains, such as campaign finance. This Article does not consider this possible extension and maintains a minimalist approach to better comply with political constitutionalism’s principle that political decision making should not be limited by unelected authorities, a point we will address subsequently.Footnote ⁶⁸

This judicial solution, as political constitutionalism demands, embodies a robust protection of people’s egalitarian commitment to govern themselves through participation or, in a nutshell, the protection of “participation of equals.” Moreover, the courts’ function in protecting the electoral process’s integrity responds to political constitutionalism’s reflexive search for new forms and possibilities. Indeed, judicial review enables the generation of law by valorizing and protecting the participation of equals.

II. Strong Judicial Review Within Political Constitutionalism

Following Ely’s framework of political-process theory, the intervention of courts in defense of the electoral process is justified as being entirely consistent with political constitutionalism and the safeguarding of its core principle: the participation of equals. In the United States, for example, the Warren Court performed such a role through several rulings defending the egalitarian and participatory principle of one person, one vote.Footnote ⁶⁹ This historical reference permits a key clarification regarding the type of judicial review required by courts to defend the electoral process. Judicial review in the United States is just one instance of judicial supremacy, in which Supreme Court justices can definitively invalidate legislation through judicial interpretations that are final and binding on the parties.Footnote ⁷⁰

Nonetheless, this approach, which tolerates judicial supremacy only in electoral matters, contradicts political constitutionalism’s rejection of judicial supremacy as one of its essential features. Bellamy emphasizes this problem by focusing specifically on Ely’s theory and rejects the compatibility of judicial supremacy with the principles of political constitutionalism, even when limiting judicial review to cases of electoral manipulation.

This represents, for Bellamy, a form of political constitutionalism which “needs reinforcing by a limited form of legal constitutionalism.”Footnote ⁷² Nevertheless, the author concludes that this legalistic form of political constitutionalism would ultimately cede to courts decisions on fundamental substantive issues that, instead, must be decided through the participation of equals.

Bellamy completes his rejection of judicial supremacy in electoral matters by discussing two examples that demonstrate his thesis: the U.S. Supreme Court decision in Gomillion v. Lightfoot on electoral exclusions and the use of racial gerrymandering in the United States as a form of minority empowerment through the creation of majority‑minority districts.Footnote ⁷⁴ In both cases, Bellamy argues, we would be confronting discriminations on which, however, citizens and not tribunals should pronounce.

The position outlined here diverges from Bellamy’s stance on electoral matters, asserting the necessity of judicial oversight when an elected majority manipulates the participation of equals. This implies, as Bellamy correctly emphasizes, a departure from political constitutionalism’s reluctance to employ judicial supremacy. Still, this change can be justified by presenting the use of strong judicial review in electoral matters as a potential institutional development of constitutionalism, one capable of safeguarding participation of equals as a political requirement that cannot be manipulated by the majority in power. The difference between this judicial approach and Bellamy’s can be illuminated through an examination of the two cases discussed by the author.

The first case, Gomillion v. Lightfoot, concerns an Alabama legislation which created in the city of Tuskegee a 28-sided boundary that excluded nearly all black voters from the redefined city, depriving them of the right to vote in local election. As recognized by Justice Frankfurter in his ruling,Footnote ⁷⁵ this legislation was designed to strip voting rights from a segment of the population. At its core, this represents a clear violation by Alabama’s legislators of the “participation of equals” principle established by political constitutionalism to manage political disagreement. The Supreme Court’s intervention prevents the weaponization of the majority principle, which in Alabama was employed as a fig leaf to conceal one group’s dominance over another through the manipulation of procedural rules. This is precisely the essence of the internal counter-majoritarian difficulty, whose resolution, therefore, cannot be left in the hands of elected majorities and must be resolved through judicial intervention.Footnote ⁷⁶

The second example posed by Bellamy to contest judicial supremacy in electoral matters concerns the broader practice of racial gerrymandering in the United States to advantage disadvantaged minorities. This intervention on inputs, that is, on how votes are collected, would be appreciable, Bellamy laments, only because the output is approved, namely the protection accorded to a minority.Footnote ⁷⁷ For this reason, the author concludes, if this evaluation were formulated by a court, an unelected institution would be deciding on an eminently political matter, rather than citizens.Footnote ⁷⁸

This objection to the courts’ role raises two problems. First, if we were to translate Bellamy’s position into a judicial decision concerning gerrymandering, we would arrive at the U.S. Supreme Court’s landmark ruling in Rucho v. Common Cause. In Rucho, the Court argued that while gerrymandering may be “incompatible with democratic principles,” the federal courts cannot review such allegations, as they present nonjusticiable political questions.Footnote ⁷⁹ This type of outcome, however, precisely recreates the problems previously highlighted: it empowers a temporary legislative majority to rule over the source of its authority. In this way, fertile ground is created for the internal counter-majoritarian difficulty, allowing gerrymandered elections to produce counter-majoritarian outcomes, delivering a legislative majority to a minority of voters and thus violating political equality. Together with equality, gerrymandering also undermines the centrality of participation, making citizens’ electoral mobilization efforts ultimately ineffective.Footnote ⁸⁰

Second, Bellamy’s argument conflates the problem of decision-making authority with the merits of the decision itself. It is undisputed that any decision, whether made by judges or legislators, may assume values conflicting with the ideal of “participation of equals.” What is relevant for the dual argument advanced in this Article, however, is differentiating between domains where the ultimate decision-making authority—and thus the possibility of error or abuse—should rest with the judiciary or the legislature. In the case of elections and the internal counter-majoritarian difficulty, legislators elected through majority rule cannot have the final say on the rules assigning the authority to legislate. It is up to the courts to establish criteria for determining, for example, whether a particular redistricting plan is legitimate.Footnote ⁸¹ The risk of judicial error or abuse of authority is a more acceptable cost than allowing legislators, who are accountable to the majority principle, to manipulate that principle to evade accountability entirely without external oversight. In the former case, indeed, we would be observing an authority that, while potentially making mistakes, remains institutionally separate from the mechanism being judged.

I. Legislatures and Courts in Dialogue on Rights

The external counter-majoritarian difficulty can be approached by considering an aspect of Ely’s political-process theory. Ely does not insist only on a “participation-oriented, representation-reinforcing” approach. Alongside this aspect, his theory focuses on the necessary protection of minorities from the majority tyranny.Footnote ⁸² We have seen how this critical issue is addressed by Ely through a procedural approach, characterizing judicial review as a means to facilitate minority representation, to protect their participation in the political process and, consequently, to include minorities in societal change.Footnote ⁸³ Framed in these terms, the point does not seem problematic from the perspective of political constitutionalism. The procedural protection of minorities involves, as discussed in the preceding section, ensuring their inclusion in decision-making processes and preventing electoral exclusion or abuse, thereby enabling these groups to advocate for their interests.

Yet, the point does not seem so plain. Minority protection might require something more than simple inclusion in the majoritarian process. Ely himself seems to acknowledge, in some passages, a greater protection beyond inclusion in the majoritarian contest, focusing on the judicial defense of minority interests, even when these groups have not been deprived of the possibility of political participation.Footnote ⁸⁴ From this perspective, courts would not merely stand as guardians of the majoritarian process but, more broadly, would embody political actors capable of ensuring for minorities—and not only them—what the majoritarian process is unable to deliver.

Lafont develops these intuitions concerning the protection of minorities, extending beyond the protection of “participation of equals” the political function of judicial review. The counter-majoritarian power of courts would not solely concern the inclusion of minorities in the majoritarian process.Footnote ⁸⁵ Rather, on matters of rights, the possibility of resorting to a different institutional mechanism, not regulated by the majority principle, should be guaranteed. Judicial review responds, according to Lafont, precisely to this necessity. The counter-majoritarian power of the judiciary would perform the function, particularly for minorities, of a “conversation initiator.”Footnote ⁸⁶ As Lafont explains, “[j]udicial review offers a key institutional mechanism by which minorities can be empowered to force an otherwise inattentive, misinformed, ignorant, or indifferent majority to listen to their cause and join the political debate on the merits of the issues at hand.”Footnote ⁸⁷

According to Lafont, the counter-majoritarian power of the judiciary enables a dialogue between minorities and courts on fundamental rights, leading to decisions grounded in reasons rather than majority support. Through this dialogue, courts guarantee minorities substantive protections beyond mere inclusion in the political process, providing remedies that deliberative and electoral mechanisms have not yet delivered.Footnote ⁸⁸ In this interpretation, the political agency of judges would be crucial in supplementing the limitations of majoritarian procedures.

Lafont appears to move beyond the “fair majoritarianism” of “political-process theory,” embracing a judicial role in hearing and disseminating minorities’ reasoning regarding constitutional rights. Although Lafont extensively develops this position, she does not address the question of how prerogatives should be allocated between judges and legislators within their dialogue about rights. Specifically, she does not examine whether weak-form or strong-form judicial review is preferable.Footnote ⁸⁹ This represents a crucial point in framing how the dialogue between courts and legislatures protects minorities.

The metaphor of dialogue used to characterize judicial review and, more broadly, the dialectic between legislative and judicial powers has been criticized in constitutional theory for failing to clearly delineate the roles of the parties involved in this dialectic.Footnote ⁹⁰ Indeed, the reference to dialogue overlooks the authoritative dimension necessarily implicated in the implementation and protection of rights. Even while advocating for collaboration between these two branches of government, the dialogue must inevitably reach a conclusion and provide responses to parties who disagree on rights interpretation.Footnote ⁹¹ For this reason, it becomes crucial to define the prerogatives possessed by the parties engaged in this dialogue.

This point brings us back to the external counter-majoritarian difficulty. The courts would be and, more importantly, should be the pivotal institution in realizing the citizens’ expectations linked to justice, equality, and rights established by the western constitutional tradition. Trusting their counter-majoritarian power, a leading political role must be assigned to the courts in democratic societies. Courts serve as fundamental agents in realizing the values and interests of citizenship, even assuming a representative role in domains where electoral representatives are susceptible to majoritarian bias. The conclusion would differ, nonetheless, in a system of weak judicial review. The absence of judicial supremacy would, in fact, reconfigure the role of the judiciary and, with it, the critical issues arising from the external counter-majoritarian difficulty.

II. Weak Judicial Review Within Political Constitutionalism

The choice of the type of judicial review is crucial for reflecting on the external counter-majoritarian difficulty. If judicial review allows citizens to initiate a dialogue, in the case of strong judicial review and judicial supremacy, the courts have the final word on the issue at hand, binding the parties in accordance with the courts’ interpretation of the problem. In contrast, in constitutional systems characterized by weak judicial review, courts do not enjoy formal legal finality, as legislatures have the power to override their decisions.Footnote ⁹² In this second case, the dialogue initiated through recourse to the courts would be more polyphonic, empowering the courts to guide the decision-making process but allowing the legislature to have the final say.Footnote ⁹³

The distinction between these two forms of judicial review is crucial for providing a comprehensive analysis of the counter-majoritarian difficulty, especially from the perspective of political constitutionalism. We began by distinguishing two different cases of counter-majoritarian difficulty, internal and external,Footnote ⁹⁴ then advancing a solution consistent with political constitutionalism centered on strong judicial review in the internal case.Footnote ⁹⁵ In that context, the goal was to guarantee political equality and, with it, the legitimacy of the principle of majority rule as a regulative criterion for democratic participation. Once judicial protection of equal participation is granted, the perspective of political constitutionalism suggests a different balance between the courts and the interpretation of other rights. In the case of the external counter-majoritarian difficulty, in other words, the aim is no longer to realize or defend equal participation but rather to conform to it.

Facing the external counter-majoritarian difficulty, political constitutionalism resorts to participation of equals as the regulative criterion for disagreements over constitutional rights. The courts would only indirectly ensure representation by supervising the political process with a strong judicial review and leaving elected representatives with the task of representing the citizenry, both in their moral positions and in their concerns about the future.Footnote ⁹⁶ Nevertheless, this process would still involve the courts, granting them a primary, though not final, role in the realization of contested rights. Indeed, despite the opposition to the expansion of judicial power,Footnote ⁹⁷ political constitutionalism does not exclude a role for the courts but, on the contrary, shapes that role according to the centrality of equal citizen participation. Courts are therefore rendered weaker than would be advocated by legal constitutionalismFootnote ⁹⁸ and are not invested with a directly representative function.

Political constitutionalism’s possible compatibility with weak judicial review emerges in its scholars’ work. Waldron clarifies that the arguments composing his core case against judicial review do not concern its weak variant.Footnote ⁹⁹ Bellamy also considers a system of weak judicial review “whereby courts defer to the legislative ‘scope’ determined by Parliament and are restricted in their independent determinations to the judicial ‘sphere’ of the fair conduct of the case at hand.”Footnote ¹⁰⁰

Tushnet articulates two points: first noting that weak judicial review “provides an institutional structure for constitutional judicial review in the courts that preserves a large domain for political constitutionalism.”Footnote ¹⁰¹ Second, Tushnet considers the possibility of a hybrid solution, employing strong review in the case of political and civil rights and weak review in the case of economic and social rights: “Is it possible to confine strong‑form review to these relatively narrow domains? I do not think that we have enough experience with weak‑form review to know the answer.”Footnote ¹⁰²

This possible dual approach to judicial review is in some ways anticipated by the reflections of other scholars, not adherents of political constitutionalism, who emphasize the necessity of super-strong judicial protection of the electoral process to safeguard the democratic nature of institutions and the laws they produce.Footnote ¹⁰³ The dual thesis—hypothesized by Tushnet and defended in this Article—develops this insight within political constitutionalism’s framework by theorizing an institutional solution that enables the judiciary to safeguard legislative majority formation without embracing strong review across all areas of rights protection. This type of hybrid response is the best solution for resolving the two counter-majoritarian difficulties by following the theoretical approach of political constitutionalism. Notably, such a dual judicial review responds to political constitutionalism’s tension toward new solutions capable of generating law through the participation of equals.

Under this reading, the protection of rights, particularly those of minorities, would be guaranteed by weak-form judicial review in all matters not pertaining to participatory procedure, whose distortions courts would correct through strong intervention.Footnote ¹⁰⁴ Weak judicial review would initiate a “dialogue” or “interplay” between judiciary and legislature,Footnote ¹⁰⁵ permitting legislative intervention only after courts have charted the interpretative course on constitutional rights. Through this hybrid conception, constitutional rights would receive dual protection: Strong court intervention for procedural abuse and weak intervention across other domains. In this latter case, only legislative override can supersede judicial decisions. This dual solution would resolve the counter-majoritarian difficulty in favor of elective legislatures while avoiding parliamentary “supreme and absolute power”Footnote ¹⁰⁶ —a power strongly limited in procedural matters yet weakly curtailed in all other areas.

The dual scheme would allow the legislature to adopt different override possibilities: formal legislative override, constitutional amendment, and jurisdiction stripping.Footnote ¹⁰⁷ While identifying the appropriate form of weak judicial review goes beyond the objectives of this Article, two aspects must be maintained. First, the type of weak or weakened review in question necessarily involves the legislature’s ability to intervene, ex post, on a judicial decision.Footnote ¹⁰⁸ Second, the weakness of review depends on a power possessed by the legislature rather than on the judiciary’s approach—in other words, judicial restraint, stare decisis, constitutional avoidance.Footnote ¹⁰⁹

The interaction between the judiciary and the legislature in a system of weak judicial review would allow judges both to improve and to contain the political power of the elected. Concerning the improvement of lawmaking, courts intervention would allow the legislature to discover possible solutions for protecting rights that have been neglected by previous legislation or to recognize necessary interventions on specific issues in future legislations.Footnote ¹¹⁰ Concerning the containment of power, political intervention on non-procedural matters would still face an obstacle in the weak review of the courts in at least two senses. First, the counter-majoritarian veto of the judiciary, although defeatable, would have significant communicative power and the capability “to put indirect pressure on legislatures to respond to demands for greater rights-based recognition for certain groups.”Footnote ¹¹¹ The judiciary could slow down the decisions of legislators by acting as a reservoir, keeping alive in the memory of the public debate the interests and values that have not been considered by the majority in parliament.Footnote ¹¹² Moreover, the weak review would push for a response and democratic mobilization, rather than for a confrontation between legislative and judicial power triggered by strong judicial review. As Dixon explains, this strategic approach recognizes potential risks:

This type of response would, more than any judicial decision, embody the spirit of political constitutionalism and the participation of equals as the beating heart of democracy and rights’ realization.