Seminar in Con Law: The Courts, the Democratic Process & the People

L799 is taught by S. Sanders

The proper relationship between courts and democracy is a debate nearly as old as the Constitution itself. Sometimes courts overrule what the people, through their elected representatives, have decided is good public policy. Fans of such decisions call the phenomenon #judicial engagement#; critics call it #judicial activism.# This so-called #counter-majoritarian difficulty# has been called #the central obsession# of modern constitutional law.

In this seminar, we will read and discuss both classic and contemporary legal scholarship addressing such questions as: When, if ever, should courts be counter-majoritarian? Is the Supreme Court really a #court,# or is it just a group of politicians in robes? Under what circumstances should courts avoid deciding controversial social and political questions (same-sex marriage, for example) and await the #democratic process#? What if legislatures do a poor job at translating the preferences of their constituents into law? What has been the relationship between the Supreme Court#s decisions and public opinion? Is traditional rational-basis review too deferential to government? Should laws made through #direct democracy# be entitled to more, or less, judicial deference than laws made through ordinary legislation?

Readings will consist of articles and book chapters distributed via Canvas. There are no materials to purchase in advance.

Grading will be based on a seminar paper and weekly participation.