The Counter-Majoritarian "Difficulty"

Larry Solum's "Legal Theory Lexicon" entry updated for today is the Counter-Majoritarian Difficulty. From the introduction:

The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions.

However, later, in the middle of the article, Solum acknowledges that "it could also be understood as a difficulty for any constitution that constrains majority will."

Well, not "could be," I think, but rather "is." The counter-majoritarian "difficulty" is the logical result of limited powers and individual and state rights. Even "ideally" formalist or originalist judges* would have to reach counter-majoritarian results (at least sometimes) if such constitutional provisions are to be more than paper oaths.

This point is central, and I'm a little surprised Solum didn't flag it in the introduction. Judicial review by "unelected judges" is frequently and artificially singled out by many conservatives as if it were a peculiar counter-majoritarian force in law. Quite simply, it ain't.

*And the point isn't restricted to judges. Formalist or originalist legislators (if you will) could only "reflect the will of the people" legislatively in cases where the will of the people happens to dovetail with what is constitutionally permissible.