THE LEAST DANGEROUS BRANCH?: Public Choice, Constitutional Courts, and Democratic Governance
Courts with the power of constitutional review have become a central, and often powerful, institution in democratic politics. At the same time, the influence of courts is often seen to be in tension with democratic governance and popular sovereignty-a tension identified with the “countermajoritarian difficulty” by legal scholars. This chapter considers constitutional courts through the lens of public-choice theory from a normative and a positive perspective. First, I demonstrate that a public-choice perspective resolves the apparent tension between judicial review and popular sovereignty. Second, I offer a positive theory that conceives of judicial power as a consequence of the need to resolve derived problems of coordination in the (contested) application of constitutional norms to specific governmental actions. This perspective suggests that judges-like leaders more generally-exercise significant, but constrained, power.
