Abstract
The Supreme Court has purported to vindicate democracy when it has deferred to majorities and refused to protect new unenumerated rights and liberties. Nothing could be further from the truth. An originalist or traditionalist method for identifying protected rights and liberties chains us to a discriminatory past. It bakes in a history of discrimination and political exclusion, skewing the set of individual rights that check majority power today. Originalism and traditionalism, in short, confound democratic legitimacy.
Recommended Citation
Miranda McGowan,
A Democratic Defense of Dynamic Due Process,
91 Brook. L. Rev.
1103
(2026).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss4/1