The title of this post is the title of this new paper authored by Aliza Cover now available via SSRN. Here is its abstract:
Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian — historically, unanimous — approval of a jury drawn from the community. And criminal law theorists’ expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it.
Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian, at best. Both harsh and contested, it has lost the structural mechanisms that could ensure supermajoritarian support. By incorporating new supermajoritarian checks and reinvigorating old ones, we could make criminal punishment consonant with first principles and more responsive to community intuitions of justice.
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