For centuries, scholars, judges, and lawmakers have argued over the role of the judiciary in striking down laws created by a democratically elected legislature. This problem has come to be known as the “Countermajoritarian Difficulty.” The famous Carolene Products footnote offers one widely accepted answer to the Countermajoritarian Difficulty. It stipulates that the judiciary should only invalidate laws that violate fundamental rights specified in the Constitution, disadvantage discrete or insular minorities, or undermine the political process. This approach promised judicial deference and allowed the legislature to create economic regulations. Debates on this subject typically involve federal courts. However, the Supreme Court of Missouri’s decision in City of Aurora v. Spectra raises these same issues on a state level.
Unconstitutional State Special Laws: Is Rational Basis Review the Rational Solution?,
87 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol87/iss2/13