Originalism, Election Law, and Democratic Self-Government

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.