ABSTRACT
This article argues that political accountability has been misunderstood in constitutional theory. Cast as the servant of majoritarianism, it has in that role contributed to a model that places majority rule at the heart of constitutional legitimacy, and requires special justification for departures. This model provides the starting place for much of modern constitutional theory, which brands judicial review as a “deviant” institution. Professor Brown suggests that a better understanding of American constitutionalism depicts accountability as a structural feature of the Constitution, similar to separation of powers, checks and balances, or federalism, the purpose of which is to protect liberty. The model based on Bichels “counter-majoritarian difficulty” is neither a necessary consequence of the development of constitutional thought through the course of the twentieth century, nor is it consistent with the history of representation in this country. That history suggests that representation in America was designed not as a means for the people to participate in government, but as a means for the people to protect themselves from their own representative government. Thus, the principle of political accountability can be understood as a way for the people to protect their own liberty. It serves this goal by allowing the people to check abuse of power and to oversee a political structure which includes a judicial branch empowered to protect individual rights. This understanding of accountability provides a different model of constitutionalism which places the elected and unelected branches not in opposing positions of legitimacy or deviance, but in positions of interdependence, the yin and yang of our constitutional structure.
