ORIGINALISM AND THE DEMOCRATIC PROCESS

MAJORITARIAN ARGUMENTS IN THE CASE LAW OF THE US SUPREME COURT

Abstract

The paper explores the tension between originalism, the theory of constitutional interpretation which posits that the original meaning of constitutional provisions should be authoritative, and the counter-majoritarian elements that are deeply embedded in the US Constitution. This is done through analysis of selected case law of the US Supreme Court in which the originalist Justices decided to protect the democratic process as a superior constitutional value instead of protecting the minority whose rights were not secured in the fora based on majority rule. The analysed case law entails the three central decisions of abortion jurisprudence (Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Dobbs v. Jackson Women’s Health Organization), and the seminal decision which legalised same-sex marriage in the US (Obergefell v. Hodges). The analysis shows that the Justices who applied originalist methodology and decided to leave the rights of the minority to the mercy of the majority were not neutral and faithful to the constitutional text as they claimed, but rather made value choices which revealed majoritarian vision of democracy under originalism.