Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court
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 ana...
Saved in:
| Main Authors: | , |
|---|---|
| Format: | Article |
| Language: | deu |
| Published: |
University of Rijeka, Faculty of Law
2024-01-01
|
| Series: | Zbornik Pravnog Fakulteta Sveučilišta u Rijeci |
| Subjects: | |
| Online Access: | https://hrcak.srce.hr/file/467749 |
| Tags: |
Add Tag
No Tags, Be the first to tag this record!
|
| _version_ | 1850187524362731520 |
|---|---|
| author | Niko Jarak Ana Horvat Vuković |
| author_facet | Niko Jarak Ana Horvat Vuković |
| author_sort | Niko Jarak |
| collection | DOAJ |
| description | 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. |
| format | Article |
| id | doaj-art-3d18f638be764367a5c3c44dedd1d7cc |
| institution | OA Journals |
| issn | 1330-349X 1846-8314 |
| language | deu |
| publishDate | 2024-01-01 |
| publisher | University of Rijeka, Faculty of Law |
| record_format | Article |
| series | Zbornik Pravnog Fakulteta Sveučilišta u Rijeci |
| spelling | doaj-art-3d18f638be764367a5c3c44dedd1d7cc2025-08-20T02:16:05ZdeuUniversity of Rijeka, Faculty of LawZbornik Pravnog Fakulteta Sveučilišta u Rijeci1330-349X1846-83142024-01-0145364967110.30925/zpfsr.45.3.7Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme CourtNiko Jarak0Ana Horvat Vuković1University of Zagreb, Faculty of LawUniversity of Zagreb, Faculty of LawThe 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.https://hrcak.srce.hr/file/467749originalismconstitutional interpretationdemocracyabortionsame-sex marriage |
| spellingShingle | Niko Jarak Ana Horvat Vuković Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court Zbornik Pravnog Fakulteta Sveučilišta u Rijeci originalism constitutional interpretation democracy abortion same-sex marriage |
| title | Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court |
| title_full | Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court |
| title_fullStr | Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court |
| title_full_unstemmed | Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court |
| title_short | Originalism and the Democratic Process: Majoritarian Arguments in the Case Law of the US Supreme Court |
| title_sort | originalism and the democratic process majoritarian arguments in the case law of the us supreme court |
| topic | originalism constitutional interpretation democracy abortion same-sex marriage |
| url | https://hrcak.srce.hr/file/467749 |
| work_keys_str_mv | AT nikojarak originalismandthedemocraticprocessmajoritarianargumentsinthecaselawoftheussupremecourt AT anahorvatvukovic originalismandthedemocraticprocessmajoritarianargumentsinthecaselawoftheussupremecourt |