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Published online by Cambridge University Press: 25 April 2022
In this chapter, I begin to study in more detail the “construction” of “counter-majoritarian” constitutions or, to use the terms employed by the Brazilian jurist Roberto Mangabeira Unger, constitutions constructed around a “discomfort with democracy.” I use, as a starting point in this exploration, the concept of “factions” that played a central role in the Federalist Papers, and which James Madison took as a basis to explain and justify his influential approach to constitutionalism. I examine the institutional implications of this “counter-majoritarian” view through numerous examples, including the preponderance of “indirect elections”; the special requirements to run for the Senate; and the peculiar organization and competencies of courts.
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