Week 9 Discussion — Guardian or Overrider? — Traditional alternative (no AI)

Instructors: publish this instead of the adaptive version if you prefer, and unpublish or delete the adaptive one.

Hook

When a court sets aside a law that elected representatives passed, some people see the constitution being protected and others see a few unelected judges overruling the many. This week gave you the vocabulary to describe that power precisely and the strongest case on each side of the argument over it.

Your discussion question — choose Option A or Option B; they carry the same weight and the same rubric, and you say which you picked.

Option A: A new democracy (an illustrative, made-up country) is writing its constitution and must decide whether its courts should have the power of judicial review. Take a position: does letting unelected judges strike down laws strengthen this democracy or weaken it? Use the counter-majoritarian difficulty to frame the problem, and state at full strength the strongest case for the side you reject, using precommitment and minority protection or the counter-majoritarian and juristocracy worries.

Option B: A made-up country has already decided its courts will have judicial review and must now choose how to build it: diffuse review, where any court may set aside an unconstitutional law in an ordinary case, or concentrated review, where one constitutional court holds the power and can rule in the abstract. Take a position on which architecture it should choose, say which supports of judicial independence your design would need, label which of your premises is empirical and which is normative, and state the strongest case for the other architecture as its defenders would put it.

There is no single right answer. Thoughtful people defend robust judicial review and thoughtful people worry about it, and both architectures are used by working democracies; your job is to argue your side well and to state the other side fairly.

Expectations

Activity format: one initial post followed by two substantive peer replies. Plan on about 45 minutes across the two deadlines; your instructor sets both due dates in Canvas.

Your initial post — by the first due date (early in the module week):

• Say which option you chose.
• State your position in one clear sentence.
• For Option A, say how the counter-majoritarian difficulty frames the choice. For Option B, say which supports of judicial independence (secure tenure, insulated selection, compliance) your design would need.
• Give at least one reason, and label each premise you rely on as empirical or normative.
• State the strongest case for the other side, as its own defenders would put it, before you answer it.
• Use at least two of this week's terms (judicial function, judicial review, judicial independence, jurisdiction, secure tenure, insulated selection, compliance, diffuse review, concentrated review, constitutional court, abstract review, counter-majoritarian difficulty, precommitment, minority protection, juristocracy) correctly, and keep Bickel's argument in your own words.
• Length: roughly 150–250 words if written. You may instead record your post as audio or video (about two minutes) and attach a transcript; both forms are scored by the same rubric.

Your replies — by the second due date (the end of the module week):

• Reply substantively to at least two classmates.
• A substantive reply does more than agree: check whether a poster kept judicial review apart from judicial independence, test whether a premise labelled empirical could really be checked, or state the side the poster did not take at its strongest. "Nice point!" on its own does not count.

What a strong post looks like:

I chose Option A, and I argue the new country should give its courts the power of judicial review. My premise that the courts would have neither force nor will, only judgment, is empirical, a claim about the design. My premise that some rights should not depend on winning a vote is normative. The strongest case against me is the counter-majoritarian worry: when unelected judges set aside a law, they override the people's elected representatives, and broad constitutional language can move value questions from voters to judges.

Notice how it takes a side, labels each premise by kind, and states the other side fairly before answering it. That is the bar.

Participation rubric

This discussion is worth 10 points. The three criteria below look at your initial post and your peer replies.

Post early if you can — the best threads happen when people have time to reply before the second due date.

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