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Together with Chapter 8, this chapter applies the dispute-resolution account of law to the countermajoritarian difficulty—the apparent tension between democratic government and judicially interpreted constitutional constraints on democracy. It first describes the difficulty and canvasses four popular types of approach to resolving it, including those endorsed by theorists such as Ronald Dworkin, John Hart Ely, Alexander Bickel, and Bruce Ackerman. It then outlines the influential version of the countermajoritarian critique articulated by Jeremy Waldron and presents a dispute-resolution defense of constitutional law. Constitutional law is necessary not only to literally constitute democratic government, but also to prevent predictable types of breakdowns in democratic authority—including agency failure and factions—and to establish extrademocratic means to resolve disputes about whether a breakdown has occurred. These tasks must be performed by constitutional law, the chapter argues, because disputes about democratic malfunctions often cannot be resolved impartially by ordinary democracy itself.

This chapter explores the role, and the reticence, of the legal academic community in the civil rights revolution era. While Alexander Bickel, Herbert Wechsler, Charles Black, Harry Edwards, and Louis Pollak took part, others, like Gerald Gunther and Paul Freund urged caution on the courts and the executive branch. The legal process school raised questions about the reasoning in Brown, and some academics like Robert Bork, Derrick Bell, and Raoul Berger, for disparate reasons, found Brown v. Board wanting. But for legal academics, Brown has become a touchstone. Efforts to "get right" with it still power academic conversations about the role of the courts in society and politics.

An ironic legacy of legal realism, rather than a reformed induction, was a turn to “general principles.” Legal principles might be viewed in two contrary ways: either as free-standing, unrevisable, and opposing one another; or, as open-ended, tentative, and suggesting alternative options for the matter at hand. The two views might be described as thinking and judging from principle or, as Alexander Bickel put it, toward principle. In the first view, they are fixed and incommensurable, while in the second they are, in Edward Levi’s words, part of a “moving classification system.” Oppositions of principle are intimately connected with unresolved social conflict, revealing the necessity of adaptation of practice in the resolution of disputes over principle. In the first view, the conceptual space of principle is fixed at the moment of decision, principles seem authoritative in their most general formulation, and their adoption may be influenced by subjective preferences rather than concrete experience (the “abuse of principle”). According to the second view, the matter at hand may be an “early case” and not warrant a principled decision. The theory of Ronald Dworkin is associated with the former view, in opposition to the deferential and participatory conception of Bickel and Holmes.

This chapter examines academic freedom at the University of Chicago, which proudly thinks of itself as a Socratic, free-thinking, and contentious institution. More specifically, it considers the antiquarian view of academic freedom associated with two constitutional conservatives, both of them famous for their advocacy of judicial restraint: Supreme Court Justice Felix Frankfurter and his former law clerk Alexander Bickel. The chapter explores the ancient Socratic ideal of freedom of thought and the application of the methods of critical reason as the ultimate ends of academic life. It also discusses the University of Chicago's conception of academic freedom as articulated in the Kalven committee report and whether faculty and administrative governance is a threat to academic freedom. It suggests that what makes a great university great is its commitment and willingness to nurture and protect the ardor and fearlessness of autonomous minds to follow the argument where it leads regardless of moral, political, or commercial interests or popular opinion.

A common metaphor in contemporary political theory figures democracy or self-government in the language of speech, conversation, dialogue, voice, discussion, or some other speech-cognate. This rhetoric is evident in the so-called dialogic, discursive, or deliberative models of democracy that integrate an entire code of “speech-act ethics.” This chapter describes a speech-modeled conception of self-government organized around freedom of speech and within which a written constitution is a necessity but also a scandal. Speech-modeled self-government also demands constitutional restraints on popular will and places constitutionalism at odds with democracy. However, the incompatibility between constitutional restraints and democratic self-government need not be seen as a logical dilemma which, in the American constitutional literature, is known as the “counter-majoritarian difficulty.” Both Robert Bork and Alexander Bickel agree with the thesis that democracy exists in deep tension with constitutionalism.

This chapter focuses on two terror trials in Israel, one involving Azmi Bishara and another involving Marwan Barghouti. In both trials, the same acts of violence were considered: terrifying criminal acts and a legitimate part of political resistance. Bishara and Barghouti were both accused of making speeches that incited terrorism, and both argued against the jurisdiction of Israel's criminal courts as a means of justifying their acts and protesting their unequal treatment. Citing constitutional law and its relatively expansive view of judicial discretion, it argues that the politics of boundary-drawing in political trials can be confronted directly only by instituting certain legal reforms in the area of criminal law. It also draws on the work of Alexander Bickel and other constitutional scholars to propose two reforms: the “abuse of process” defense and the need for Israeli courts to move in the direction of jury trials and embrace the possibility of jury nullification.

This chapter recounts a judge’s lifelong engagement with the novels of John Dos Passos as a means to understand ways to accommodate the tensions between substance and procedure in the law. The focus is on Adventures of a Young Man, the midcareer novel that marked the transition of Dos Passos from literary man of the Left to literary man of the Right. The novel’s depiction of the protagonist Glenn Spotswood illustrates the tendency of coercive political organizations—in Glenn’s case, the Communist Party—to devitalize and distort both individuals and the social institutions capable of providing the social resiliency necessary for a functioning democracy. The alternative of a morality of process, outlined by Alexander Bickel in Morality of Consent, that resists “the seductive temptations of moral imperatives” by fixing “attention on that middle distance where values are provisionally held and evolve within the legal order” is explored.

This concluding section asks whether the Civil Rights revolution should be seen as a legal or as a political movement. It assesses the impact of that movement on the careers and reputations of judges and justices like Earl Warren, Felix Frankfurter, Frank Johnson Jr., and Elbert Tuttle, state politicians like Richard Russell, John Patterson, and Richard Ervin, and academics like Alexander Bickel, Derrick Bell, and Herbert Wechsler. Finally, it weighs issues raised by judicial review, the "countermajoritarian dilemma" and the role of lawyers in political life.

This chapter examines how the concept of constitutional obedience manages to misdirect political argument by bringing up important questions in the doctrine of judicial review. It cites Yale law professor Alexander Bickel's position in his book The Least Dangerous, where he states that the whole doctrine of judicial review is a “deviant institution”, leading to a problem which he calls countermajoritarian difficulty. It also raises the issue of whether the Constitution is the appropriate source of judicial actions which bounds the domains of powers and rights. The chapter also takes on the idea of precommitment, which supports constitutional obedience by problematizing its freedom-enhancing details.

This chapter attempts to underscore the potential advantages to creating a special constitutional tribunal that is relatively detached from the ordinary judiciary. This is especially so in civil-law countries. Constitutional judges need to have a degree of “leisure” and “insulation” to reflect upon fundamental values, as Alexander Bickel put it. The centralized model offers an obvious advantage in this regard: the constitutional court can concentrate all its time and energy on checking the validity of parliamentary enactments and is, therefore, liberated from the task of ordinary adjudication. Many European countries bestow ordinary judges the authority to trigger the process of review; when they have doubts about the validity of a statute that is relevant to a case they are handling, they can certify a question to the constitutional court.