Joshua Sellers (University of Texas at Austin – School of Law) has posted Originalism, Election Law, and Democratic Self-Government (76 Florida Law Review 1613 (2024)) (66 pages) on SSRN. Here is the abstract:
Originalism has a democracy problem. Among prevailing theories of constitutional interpretation–pragmatism, common-law constitutionalism, popular constitutionalism, and Elysian representation-reinforcement–originalism uniquely creates a legal environment in which antidemocracy is viable. That is, it uniquely imperils democratic structures, practices, and norms that are essential to modern democratic self-government. This fundamental flaw is most apparent when considering the relationship between election law (a conspicuously non-originalist area of law) and originalism. Accordingly, this Article uses election law as a heuristic for illustrating one of originalism's central deficiencies. It is the first extended treatment of election law and originalism — a topic of heightened salience following the Supreme Court's originalist turn.
(Via Rick Hasen at Election Law Blog.)
Posted at 6:17 AM