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A Counter-Majoritarian Critique Of Originalism

Niko Jarak

Sažetak

The paper aims to demonstrate that the interpretive theory of originalism is based on a majoritarian conception of democracy which is antithetical to the basic counter-majoritarian premise of the US Constitution. The criticism focuses on the counter-majoritarian argument proposed in favour of originalism, according to which the main counter-majoritarian feature of the Constitution relates to the semantic stability of its content, which is then methodologically implemented in constitutional interpretation through the concept of fixed meaning. It is argued that this proposition is in fact purely procedural since it equates the idea of limiting political majorities in relation to the rights of minorities with the requirement of a supermajority in the constitutional amendment process – hindering the implementation of substantive constitutional values such as equality and fundamental rights protection. A counter-majoritarian argument against originalism based on the institutional role of courts is developed in order to show that originalism marginalizes judicial input in the development of constitutional doctrine. It follows that originalism effectively removes the counter-majoritarian power from the framework of checks and balances, giving wide latitude to democratic branches of government, and opening the door to tyranny of the majority.

Ključne riječi

originalism, constitutional interpretation, counter-majoritarian difficulty, constitutional democracy, judicial review

Hrčak ID:

328385

URI

https://hrcak.srce.hr/328385

Datum izdavanja:

25.2.2025.

Posjeta: 376 *