Research On The "Countermajoritarian Difficulty" In The United States' Constitutionalism

This thesis, which is composed of seven parts, conducts general research on the topic of the"countermajoritarian difficulty"in the United States'constitutionalism from the perspectives of jurisprudence, constitutional law, politics and legal history (American constitutional history).The introduction part defines the"countermajoritarian difficulty"as the problem of justifying the exercise of judicial review by unelected judges in the United States. The key of the"countermajoritarian difficulty"is to seek the legitimacy and limitation of judicial review, because the objects of judicial review are laws made by democratically-elected bodies. This part also illustrates the significance of the research.Chapter 1 traces the history of the"countermajoritarian difficulty"in order to make the background of the problem clear. This part emphasizes that judicial activism has an influence on the"countermajoritarian difficulty".Chapter 2 presents and makes comments on three theories regarding research on the countermajoritarian problem in the American academia, including"the theory of basic rights","the theory of political process"and"the theory of judicial passivism". Chapter 3 discusses a prerequisite question that whether the"countermajoritarian difficulty"constitutes a tough problem.Chapter 4 focuses on the limitation of democracy in the theory of liberalism and makes a deep insight into the reasons for countering majority. This is actually one vital point of the legitimacy of judicial review. The thesis claims that what judicial review should protect is deliberate democracy, which thus to some degree removes the inconsistency between judicial review and democracy.Chapter 5 studies the reasons why unelected judges become responsible for countering majority, another vital point of the legitimacy of judicial review. The thesis explains the point from"inevitability"(traditional factor),"ought to be"(the nature, character and function of the judicature) and"to be"(constitutional interpretation).The conclusion part summarizes the main points of this thesis. Besides, this part also makes some additional statements about the limitation of the judicial review.