A COUNTER-MAJORITARIAN CRITIQUE OF ORIGINALISM

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 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 rights of minorities with the requirement of supermajority in the constitutional amendment process – hindering 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 development of constitutional doctrine. It follows that originalism effectively removes the counter-majoritarian power from the framework of checks and balances, leaving wide latitude to democratic branches of government, and opening the door to tyranny of the majority.