Constitutional Theory and Constitutional Time

Today we take up a challenge to our views about the tension between democratic self-governance and the contemporary form of judicial that Mark draws from the scholarship of political scientists including Robert Dahl. Dahl’s challenge, in a shorthand, is that American politicians, speaking for we the people, like that form of judicial review—that it has democratic credentials. Other political scientists identify different periods or “regimes” of dominant majorities, and judicial review fits comfortably when there is such a majority. Mike raises questions about the broadbrush nature of Dahl’s account and about the important anti-democratic role judicial review plays when no dominant majority is in place (during interregnums) and in thwarting local majorities not in line with the national majority. Mark counters with the observation that sometimes the local majorities are oppressing people who are in line with the national majority (blue cities in red states or vice versa), and that in any event the fact that one regime eventually replaces another diminishes the degree to which any judicial decision is entrenched and thwarts what Mike calls the ambitions of judicial review. There’s a lot more detail in this rather long episode, and we’ll revisit some of its themes in later episodes.