A Matter of Pedigree: Legal Interpretation and Judicial Review

Abstract Countermajoritarianism is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority (judges) to overrule laws that represent the will of the majority. The core claim of this view stresses the conflict between agents with a democratic and a non-democratic pedigree. I call this conflict the ‘pedigree problem’ of judicial review. Against countermajoritarianism, I argue that the pedigree problem does not affect some forms of judicial review: specifically, the judicial review that declares a norm inapplicable in a specific case due to the unconstitutional effects that this application brings about. Countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic. In order to justify this claim, I draw insights from legal interpretation literature, specifically, the distinction between ‘norm formulation’ and ‘norm’.