# The Countermajoritarian Necessity: A Response to Loreintor \[ZML\] **URL:** \ **Category:** University of the East Pacific\ **Created:** [October 8, 2026, 1:38pm UTC](https://forum.theeastpacific.com/t/the-countermajoritarian-necessity-a-response-to-loreintor-zml/20134 "2026-10-08T13:38:30Z")\ **Posts on this page:** 1\ **Page:** 1
**Author:** ![Zukchiva](https://forum.theeastpacific.com/user_avatar/forum.theeastpacific.com/zukchiva/32/15649_2.png) [@Zukchiva](https://forum.theeastpacific.com/u/Zukchiva)\ **Post date:** [October 8, 2026, 1:38pm UTC](https://forum.theeastpacific.com/t/the-countermajoritarian-necessity-a-response-to-loreintor-zml/20134/1 "2026-10-08T13:38:30Z")
The Countermajoritarian Necessity: A Response to Loreintor By: [Aivintis](https://www.nationstates.net/nation=noflag); Published 2024 * * * The primary puzzle of a judiciary in Political Science is this: Why empower an undemocratic institution within a democracy? More precisely, why allow unelected judges to move against the will of the people if we wish to maintain a balanced democracy. This is what 20th century scholar Alexander Bickel called ‘The Countermajoritarian Difficulty.’ In his book on courts, “The Least Dangerous Branch,” Bickel states the following: “[W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not on behalf of the prevailing majority, but against it.” [1] Bickel is correct in his observation, but incorrect in the implications he makes – that it is fundamentally wrong to empower an undemocratic institution. The judiciary in any government is a countermajoritarian NECESSITY to prevent the tyranny of the majority and protect the minority. Alexander Hamilton remarks, “the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society” and “a check upon the legislative body.” [2] The courts should not be castigated for being undemocratic – that is their nature. However, the undemocratic nature of the court must be balanced in a fair use of that power. It is a political trade off of massive implications. Within the model judicial branch, democracy is traded for checks and balances. It is a trade off the framers of most constitutions, including the Concordat of The East Pacific, have knowingly and wisely chosen. I have no problem with the undemocratic nature of the Conclave as a rule. I think the “undemocratic exclusivity” of the court allows for only qualified candidates to be selected and I think it protects against the potential dangers of a tyrannical majority, which the Davelands Magisterium and the Fedele Executive sought to implement by removing Magisters such as Zukchiva and Asendavia, through appointment to other branches. [3] In my essay “The Role of the Conclave,” [4] I write of the traditional roles of a judicial branch and the way the Conclave compares to each. I conclude, ultimately, that the Conclave is not largely necessary in its current form but is kept around largely for a powerful underlying social norm that all democratic governments must have a judiciary. In this essay, I unequivocally clarify that this does not mean the courts should be abolished. I assert that I do not see such a need at all. In their response to “The Role of the Conclave,” dubbed “The Undemocratic Conclave,” Loreintor asserts that I do believe that, claiming “it clearly argues for the abolishment of the Conclave.” [5] It does nothing of the sort. It took an empirical, holistic view of the courts, analyzed what use they bring to our democracy, and concluded that they were not “necessary to keep, nor necessary to abolish.” [4] Does this sound like a clear argument for the abolition of the Conclave? When the ConCrisis occurred, one Arbiter remarked, “If you don’t want or like this, then abolish the Conclave.” I unequivocally replied, “I disagree.” [6] My paper was not normative, seeking to describe how the political system should be. It was empirical, seeking to describe the existing state of the political system as it is now. Even if it was normative, it would not argue for such. Before publication, I worried that the paper would still give that impression, so I spoke with two East Pacifican legal scholars, who I will not name but who may identify themselves publicly if they wish. They assured me that I did not seem to be arguing for such a thing and that my disclaimer was sufficient. By deciding that my argument is to abolish the Conclave, Loreintor names a criticism that would be valid for such an argument – “It argues that it is replaceable, that its powers can be split between the other three branches with little explanation as to how.” [5] This is because I have no desire to go down that road. As a thought experiment, I spoke with the same legal scholars who I consulted to assure myself that none would misconstrue the essay like this. One had asked how the split could work, and we discussed some ways that might occur. I could have put it in the article. I did not. I can put it here. I will not. For I am not arguing for the abolition of Conclave. The chief argument in “The Undemocratic Conclave” concerns the rhetoric of “The Role of the Conclave.” According to Loreintor, the framing of the Conclave as undemocratic and exclusive is an attempt to vilify the Conclave and paint it as a threat to the region. This is, categorically, not the goal of “The Role of the Conclave.” As I said, the goal is to examine the institution empirically and holistically. It is not to vilify the Conclave or accuse them of anything. I hold no contempt for them and I never have. I have always spoken out against pitting the Conclave against the Magisterium, even in the aftermath of the ConCrisis: “See, this is the problem: Us vs them. We’re one TEP united, we’re not Conclave vs Magisterium. Feeding this mentality with more anger and more fighting does not help the region. It harms it.” [6] Loreintor argues that the use of the phrase “undemocratic exclusive Conclave” paints the Conclave as “a tyrannical regime, someone who has destroyed the fabric of our government.” [5] This is not the intent and I think it can only be read that way when assuming bad faith. Nothing is inherently bad about exclusivity – as “The Undemocratic Conclave” discusses and I argue here, an unelected court is a check on the legislature and allows only for the most qualified individuals to take office in the Conclave. Nor is “undemocratic” necessarily “tyrannical.” The Conclave is undemocratic, as are all courts, but democracy is not all or nothing. It is a sliding scale of being defined by various characteristics. The characteristics that are integral to democracy are free and fair elections, adequate separation of powers, and individual rights. However, each of those creates complicated questions. If a government has more elections than us, or stronger separation of powers, or more individual rights, does that mean we are tyrannical? No. Does it mean we’re less democratic? Yes. Is that a bad thing? Not necessarily. Just as an undemocratic court is a trade off, every decision we make within our democracy is a trade off between security and inclusion. The Magisterium is less democratic than the all-citizens legislature of The Free Nations Federation, but that does not make the Magisterium tyrannical. Neither does the undemocratic nature of the Praesidium or the Conclave make those branches tyrannical. If one writes “undemocratic” to mean “tyrannical,” they are showing little cognitive depth. I am saddened that Loreintor would think such of me. I understand that Loreintor is in a unique position as an Arbiter during the controversial ConCrisis ruling. I understand that they disagree with my legal perspective on the affair, I understand that they disagree with my academic perspective on the Conclave, and I understand that they disagree with my political perspective on what checks and balances are necessary to create. I do not have a problem with their disagreement or their own perspectives in these affairs. However, I would like to make it very clear that I do not see the Conclave as a threat to democracy or as a bastion of tyranny, nor do I wish to abolish the Conclave. I did not write any of that and I do not believe any of it. I think Loreintor has an intelligent and compelling contribution to the conversation through their final paragraph. My response to that, however, will follow a forthcoming reply from Bachtendekuppen, both of which I intend to address in one article for simplicity’s sake. [1] Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–23 (1962). Print. [2] Alexander Hamilton, Federalist No. 78: “The Judiciary Department” (1788). [Library of Congress.](https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470) [3] Zukchiva Yura, Notes and Theories about the Fedele Coup (2020). [Dispatch.](https://www.nationstates.net/page=dispatch/id=1348281) [4] Aivintis Mangegneithe, The Role of the Conclave (2024). [University of The East Pacific.](https://www.nationstates.net/page=dispatch/id=2532664) [5] Halley Loreintor, The Undemocratic Conclave: a response to “The Role of the Conclave” (2024). [University of The East Pacific.](https://www.nationstates.net/page=dispatch/id=2539918) [6] [https://www.tapatalk.com/groups/the\_east\_pacific/viewtopic.php?p=256701#p256701](https://www.tapatalk.com/groups/the_east_pacific/viewtopic.php?p=256701#p256701)