The Counter-Majoritarian Difficulty: Bickel and the Mexican Case

In this article, I analyze the counter-majoritarian difficulty and examine how it manifests itself in the Mexican case. I first summarize the problem originally formulated in Alexander Bickel’s work “The Least Dangerous Branch.” I then present some of the main objections against judicial control that have found their way into the debate surrounding the counter-majoritarian difficulty and give an overview of the main defenses of judicial control over the constitutionality of laws. Subsequently, I argue that given the particular nature of Mexico’s history and its constitutional court, the debate on the antidemocratic nature of these control mechanisms has been and will be less intense than the one surrounding the U.S. Supreme Court and judicial review. I also analyze the different types of counter-majoritarian decisions regarding constitutional control which have been made in Mexico.