Deliberative Democracy and the Countermajoritarian Difficulty: Considering Constitutional Juries

The literature on the democratic legitimacy of judicial review and also on institutionalizing deliberative democracy neglects the possibility of employing juries rather than judges to determine bill-of-rights matters. This neglect is unfortunate, for there are findings emerging especially from deliberative polling that support the feasibility of such juries. Such feasibility would raise a new countermajoritarian concern with judicial review. The argument supporting this new concern also casts fresh light on the traditional countermajoritarian concern.