1 - The Counterpopular Dilemma

Summary

The first chapter defines the counterpopular dilemma that courts face when, as an individual-rights-protecting, state-limiting institution, they are mandated to opine on the collective expression of political freedom. By enforcing rights – or, as is more typically advanced as the correct understanding of election law, restructuring democratic process to prevent abuses by those in power – politically nonaccountable courts are mandated to constrain the realization of democratic will. This creates a fundamental tension between the principle of democracy as empowered by and empowering the constituent members of the polity and judicial authority.