The Judiciary and American Democracy

Alexander Bickel, the Countermajoritarian Difficulty, and Contemporary Constitutional Theory

Edited by Kenneth D. Ward & Cecilia R. Castillo

Subjects: Constitutional Studies
Series: SUNY series in American Constitutionalism
Paperback : 9780791465561, 204 pages, June 2006
Hardcover : 9780791465554, 204 pages, September 2005

Alternative formats available from:

Table of contents


Kenneth D. Ward

1. Principle, Prudence, and Judicial Power
Robert F. Nagel

2. The Jurisprudence of Constitutional Regimes: Alexander Bickel and Cass Sunstein
Mark Tushnet

3. Alexander Bickel and the New Judicial Minimalism
Christopher J. Peters and Neal Devins

4. Democratic Constitutionalism: The Bickel-Ackerman Dialectic
David M. Golove

5. The Countermajoritarian Difficulty: Tradition Versus Original Meaning
Stanley C. Brubaker

6. An Empirical Analysis of Alexander Bickel’s The Least Dangerous Branch
Terri Peretti

7. Bickel and the New Proceduralists
Kenneth D. Ward

8. Constitutional Theory and the Faces of Power
Keith E. Whittington

List of Contributors

Examines recent debates in constitutional theory in light of the work of Alexander Bickel.


The role courts should play in American democracy has long been contested, fueling debates among citizens who take an active interest in politics. Alexander Bickel made a significant contribution to these debates with his seminal publication, The Least Dangerous Branch, which framed the problem of defending legitimate judicial authority. This book addresses whether or not the countermajoritarian difficulty outlined in Bickel's work continues to have significance for constitutional theory almost a half-century later. The contributors illustrate how the countermajoritarian difficulty and Bickel's response to it engage prominent theories: the proceduralisms of John Hart Ely and Jeremy Waldron; the republicanisms of Bruce Ackerman and Cass Sunstein; and the originalisms of Raoul Berger, Robert Bork, and Keith Whittington. In so doing, this book provides a useful introduction to recent debates in constitutional theory and also contributes to the broader discussion about the proper role of the courts.

At Texas State University at San Marcos, Kenneth D. Ward is Associate Professor and Cecilia R. Castillo is Assistant Professor in the Department of Political Science. Castillo is the coeditor (with Kenneth L. Grasso) of Liberty Under Law: American Constitutionalism, Yesterday, Today, and Tomorrow.