Deliberative Democracy and the Countermajoritarian Difficulty: Considering Constitutional Juries

Abstract

The literature on the democratic legitimacy of judicial review and also on institutionalizing deliberative democracy neglects the possibility of employing juries rather than judges to determine bill-of-rights matters. This neglect is unfortunate, for there are findings emerging especially from deliberative polling that support the feasibility of such juries. Such feasibility would raise a new countermajoritarian concern with judicial review. The argument supporting this new concern also casts fresh light on the traditional countermajoritarian concern.