Alexander Bickle's Counter-Majoritarian Difficulty Analysis

Alexander M. Bickle uses the term “counter-majoritarian difficulty” to state a problem with the legitimacy and structure within judicial process when unelected judges use executive power to reverse the actions of elected administrators of the Constitution, these unelected judges act contrary to the “majority will” (1962). Bickle explains for those who believe in overruling the “majority will” and essentially democratic majoritarian theory, devalue its political authority and is against proper judicial review (1962). In simpler terms, the counter-majoritarian difficulty is grounded in ideas based on the relationship between democracy and legitimacy. In Canada, requirements are made for a legislative, even more so, judges are appointed by the …show more content…
Moreover, these victims relate to the idea of “discrete and insular minorities” (that derives from footnote four of United States vs. Carolene) and how they often rule against oppressive actions made by democratic majorities. The question is, should the judicial process become more lenient in their ruling towards these victims? If Bickle were to answer this question through his counter-majoritarian theory, he would suggest that when the minority over positions the majority, it causes the impediment of legitimacy and authority of judges. However, in a democratic society, it is fair for individuals to rule against the majority if they have a sufficient argument to counter, based on the Charter of Rights. Furthermore, judicial review is debatably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities. Another critique of the counter- majoritarian difficulty theory is, the fact that this judicial review tries to trump democratic