Alexander Bickel's Counter-Majoritarian Difficulties

Improved Essays
In a 1962 book entitled The Least Dangerous Branch American legal scholar Alexander Bickel coined the term “counter-majoritarian difficulty” to refer to the inherent issues between judicial review and democracy (16). When a judiciary strikes down a piece of legislation and declares it unconstitutional it is going against the will of democratically elected representatives (Bickel, 1962, 16-17). Although Bickel was not the first scholar to point out the issues in reconciling judicial review and democracy, his critique inspired a new wave of academics to engage with judicial review (Friedman, 2002, 202). The critique became especially pronounced during the activist Warren Court of the 1960s (Friedman, 2002, 202). The counter-majoritarian difficulty …show more content…
The legislature is able to respond by crafting a new law that both respects the Charter values emphasized by the court when they first struck down the legislation, and accomplishes the legislature’s original objective (Hogg and Bushell, 1997, 80). Furthermore, in addition to explain why a piece of legislation violated the Charter, courts will often offer suggestions with regard how the legislation could be amended to bring it into line with the Charter while still accomplishing the goal the legislation was intended to meet (Hogg and Bushell, 1997, 80-81). A prime example of dialogue in action is the case of Rocket v. Royal College of Dental Surgeons of Ontario; in this case, the Supreme Court struck down a law prohibiting the advertising of dental services (1990). The Court noted that while the law as it was written was a violation of Section 2 (b) of the Charter, a modified law that both allowed legitimate dentists to advertise, but also prevented the spread of misinformation would not be in violation of the Charter ([1990] 2 SCR 232). The legislature took the Court’s suggestion into consideration, and drafted a new law that specifically protected the public against advertisements with misleading info (Hogg and Bushell, 1997, 86). Hogg and Bushell analysed sixty-five cases where a court ruled that legislation was in violation of the Charter, in two-thirds of those cases, the legislature responded by slightly amending the legislation to bring it in line with the Charter, while still achieving the original goal of the legislation (1997,

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