My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract: As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy […]
Archive | Representation-Reinforcement
My Balkinization Post On the Implications of Political Ignorance for Judicial Review
By Ilya Somin on October 8, 2013 2:53 pm in Constitutional Theory, Democracy and Political Ignorance, Political Ignorance, Representation-Reinforcement
My final substantive Balkinization guest-blogging post about Democracy and Political Ignorance focuses on the implications of widespread political ignorance for judicial review and the “countermajoritarian difficulty.” For those who may be interested, I addressed the related question of the implications of political ignorance for originalism, in this article.
Can Lawyers Ascertain the Meaning of the Living Constitution?
By Ilya Somin on August 19, 2013 6:11 pm in Constitutional Theory, Originalism, Representation-Reinforcement
I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution. […]
Larry Solum on the Countermajoritarian Difficulty
By Ilya Somin on September 10, 2012 11:20 am in Constitutional Theory, Democracy, Representation-Reinforcement
Georgetown law professor Larry Solum has an excellent post summarizing the ongoing debate over the “countermajoritarian difficulty,” one of the most common criticisms of judicial review. Solum summarizes the “difficulty” as follows: The counter-majoritarian difficulty may be the best known problem in constitutional theory… The counter-majoritarian difficulty states a problem with the legitimacy of the […]