Legal Commentary

Alexander Bickel coined the term "counter-majoritarian difficulty" to describe the legitimacy problem faced by courts when they strike down popularly enacted statutes.  While it is definitely a problem, I am not sure that it is very often necessarily a problem of counter-majoritarianism, though sometimes it is.  More often, the debate is simply the level of generality at which we define the majority's preferences.

Take flag burning.  If you ask the majority of people whether flag burning should be banned, the answer would be "yes."  If you ask whether the majority of people whether we should ban "expressive speech" -- entirely putting aside whether the First Amendment forbids this -- the answer would be "no."  But as long as we concede that flag burning is an instance of "expressive speech," then these preferences conflict (and for those who don't agree that flag burning is expressive speech, imagine some other distasteful activity  -- e.g. KKK marches -- that fits the bill).  Unlike Bruce Ackerman's conceptualization of the problem as an intertemporal conflict between different majorities, often it is a conflict within the same majority, where the preferences are measured at different levels of abstraction.  A court that strikes down a flag burning ban is contradicting today's majority preference for the ban, but effectuating the same majority's more general preference for protecting expressive speech.

Thus conceptualized, the problem is not limited to constitutional law but is well known in voting theory.  Its most common manifestation in real life is probably the public's preferences on government spending.  In the abstract, the public prefers reductions in spending in order to lower taxes and lower deficits.  At the same time, majorities of the public also love individual spending programs.  These two preferences conflict.  Hence our deficit problems.