Conquering The "Counter-majoritarian Difficulty" By Cases

"counter-majoritarian difficulty" was first proposed by Professor Bickel, referring to the problem of democratic legitimacy when the non-elected court review the laws enacted by the people through democratic means. The existing studies on this issue mostly focus on the investigation of the text of the Constitution, limited to static perspective and institutional analysis.But in fact, this is not just a theoretical problem, but also a problem of practice. Proceeding from the practice, this paper studies those cases to find what conditions under which cases conquering the "counter-majoritarian difficulty" and how to conquer it. And then it tries to find the "counter-majoritarian difficulty" bring what kind of impacts to the legal order, political order and social order. On the basis, it summarizes some common principles, which have practical significances for the establishment of the constitutional review system and the improvement of the constitutional order in China. Based on the foregoing considerations, this paper start from the comparative case study, expecting it could be helpful to a clear understanding of our constitutional review problems.This paper is divided into four parts. The first chapter is an overview of the "counter-majoritarian difficulty". It introduces the origin of the problem and the related theories, pointing out the limitations of simple theoretical analysis and the importance of practical research. The second chapter selecting the United States, Germany and France as the objects of study, analyzes the first case of the constitutional review in every aspects. And then through a comparative study, it sums up that the three countries share some common basis in conquering the "counter-majoritarian difficulty"——system basis, theoretical basis and a good opportunity. The third part pays attention to China, pointing out that China is facing the complex environment------the disadvantages of the Constitution, the weak sense of law, the lack of theoretical accumulation, and does not have adequate conditions to establish the constitutional review system yet. And this part reveals why the case of Sun Zhigang cannot able to contribute to establish this system. The forth part demonstrated how to limit the violation of the constitutional review to the democratic system, and how to coordinate the relationship between "minority protection" and "majority rule". This part introduces a proceduralist approach by John Hart Ely, and the weak judicial review mode practiced in Britain and Canada. The combined wisdom of both the skills interpreting the law and the principle of the sovereignty of the people provides a new way for our study of judicial review. The fifth part summarizes the understanding of the "counter-majoritarian difficulty" and the revelation in the practice.The discussions of cases conquering the "counter-majoritarian difficulty" concentrate on the constitutional review, but in fact focus on the entire constitutional process. In the constitutional development, the role of the cases cannot be ignored, and may well be a good development strategy. The first case cannot solve everything, but orient people’s thinking to a more realistic and valuable way. Deep investigation of the system behind not only reveals the deep relationship among judicial review, constitutional and democratic, but also inspires the construction of constitutional democracy and the constitutional review in China.