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Log in through your institution journal article Kelsen on Democracy and Majority DecisionARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy Vol. 103, No. 2 (2017) , pp. 155-179 (25 pages) Published By: Franz Steiner Verlag https://www.jstor.org/stable/45175260 Read and download Log in through your school or library Alternate access options For independent researchers Read Online Read 100 articles/month free Subscribe to JPASS Unlimited reading + 10 downloads Abstract This paper explicates some aspects of Hans Kelsen's defence of democracy. Kelsen's aim was to formulate a realistic normative alternative to the democratic ideal derived from Rousseau. He provided two, independent arguments for majoritarian democracy. First, the validity of majority principle could be derived from epistemological relativism. Second, majority principle maximized individual liberty. The latter argument is based on Kelsen's own definition of liberty as a correspondence between an individual will and the ruling norms. This argument could be interpreted as reasoning based on a hypothetical contract. The most important critiques of majoritarian proceduralism are based on (1) the problem of the possibility of democratic self-destruction, (2) the problem of the democratic origins of democracy and (3) the problem of the possibility of permanent majorities. Kelsen had a convincing answer to problems, (1) and (2). The problem of permanent majorities is more difficult to solve. Ultimately, Kelsen is forced to abandon his purely proceduralistic starting point. Journal Information Das Archiv für Rechts- und Sozialphilosophie, herausgegeben im Auftrag der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR), leistet seit 1907 philosophische Grundlagenforschung innerhalb der Rechtswissenschaft: Schwerpunkt ist das geistige Fundament des Sozial- und Rechtslebens sowie seine Verflechtungen und Auswirkungen. Die Zeitschrift berücksichtigt dabei alle Denkrichtungen der Gegenwart, besonderer Wert wird auf eine internationale Ausrichtung gelegt. Alle Artikel beweisen ihr wissenschaftliches Niveau in einem peer review-Verfahren. Das Archiv für Rechts- und Sozialphilosophie ("Archive for Philosophy of Law and Social Philosophy") is published on behalf of the International Association for Philosophy of Law and Social Philosophy (IVR). It has carried out fundamental research in the philosophy of jurisprudence since 1907 with a focus on the intellectual foundation of social life and legal culture as well as their interconnections and consequences. The journal includes all contemporary schools of thought and places particular value on an international perspective. The high scholarly quality of all articles is ensured by a peer-review process. Publisher Information Franz Steiner is one of Germany's most prominent academic publishing houses. Our focal point is ancient history, but also social and economic history, as well as history of science; furthermore regional studies, Eastern European history and transatlantic studies. We oversee more than 150 serial publications as well as 28 periodicals and publish such renowned series as Historia, Hermes and Archiv für Rechts- und Sozialphilosophie. We only publish those projects which proved their academic value in external anonymous peer assessments. Rights & Usage This item is part of a JSTOR Collection.  Justice Felix Frankfurter was a huge influence on the Supreme Court in the years he sat on the bench, 1939 — 62. He is noted for his civil rights and anti-trust decisions. "It is a fair summary of constitutional history that the landmarks of our liberties have often been forged in cases involving not very nice people." -Supreme Court Justice Felix Frankfurter Protection of civil liberties and civil rights is perhaps the most fundamental political value in American society. And yet, as former Justice Frankfurter explained in the quote above, the people who test liberties and rights in our courts are not always ideal citizens. Consider some of these examples:
Each of these people made sensational headline news as the center of one of many national civil liberties disputes in the late 20th century. They became involved in the legal process because of behavior that violated a law, and almost certainly, none of them intended to become famous. More important than the headlines they made, however, is the role they played in establishing important principles that define the many civil liberties and civil rights that Americans enjoy today. Liberties or Rights?What is the difference between a liberty and a right? Both words appear in the Declaration of Independence and the Bill of Rights. The distinction between the two has always been blurred, and today the concepts are often used interchangeably. However, they do refer to different kinds of guaranteed protections. Civil liberties are protections against government actions. For example, the First Amendment of the Bill of Rights guarantees citizens the right to practice whatever religion they please. Government, then, cannot interfere in an individual's freedom of worship. Amendment I gives the individual "liberty" from the actions of the government. Civil rights, in contrast, refer to positive actions of government should take to create equal conditions for all Americans. The term "civil rights" is often associated with the protection of minority groups, such as African Americans, Hispanics, and women. The government counterbalances the "majority rule" tendency in a democracy that often finds minorities outvoted.
Right vs. RightThe Chicago Defender, an African-American newspaper, trumpets the desegregation of the military. The right to participate in public institutions is a key component of civil rights. Most Americans think of civil rights and liberties as principles that protect freedoms all the time. However, the truth is that rights listed in the Constitution and the Bill of Rights are usually competing rights. Most civil liberties and rights court cases involve the plaintiff's right vs. another right that the defendant claims has been violated. For example, in 1971, the New York Times published the "Pentagon Papers" that revealed some negative actions of the government during the Vietnam War. The government sued the newspaper, claiming that the reports endangered national security. The New York Times countered with the argument that the public had the right to know and that its freedom of the press should be upheld. So, the situation was national security v. freedom of the press. A tough call, but the Court chose to uphold the rights of the press. The Bill of Rights and 14th AmendmentThe overwhelming majority of court decisions that define American civil liberties are based on the Bill of Rights, the first ten amendments added to the Constitution in 1791. Civil liberties protected in the Bill of Rights may be divided into two broad areas: freedoms and rights guaranteed in the First Amendment (religion, speech, press, assembly, and petition) and liberties and rights associated with crime and due process. Civil rights are also protected by the Fourteenth Amendment, which protects violation of rights and liberties by the state governments. 14th AmendmentSection 1. Section 2. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. Section 5. Protection of civil liberties and civil rights is basic to American political values, but the process is far from easy. Protecting one person's right may involve violating those of another. How far should the government go to take "positive action" to protect minorities? The answers often come from individuals who brush most closely with the law, whose cases help to continually redefine American civil liberties and rights. In what kind of government does the majority rule quizlet?Majority rule is how all democracies make political decisions by the getting the majority vote. Majority rule must be coupled with with guarantees of individual human rights. The rights of minorities does not depend on the good will. Rights are protected because democratic laws protect all rights of citizens.
How did the founders view majority rule quizlet?The Founding Fathers were firmly committed to the principle of popular sovereignty. They disagreed with any government system that ignored the people's voice and will. However, the Framers also feared a government system built on majority rule because a larger group could unfairly control smaller groups.
What is an important check on majority rule in the US?Checks and Balances in the Constitution
First, Congress is elected by the people. Then, congress elects more people to the legislative and judicial branches of the government. This ensures that the majority rules.
How do modern democracies ensure that majority rule does not become oppressive?How do modern democracies ensure that majority rule does not become oppressive? By instituting "majority rule with minority rights." This means that the minority is protected from the tyranny of the majority.
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At the federal level, the democratic ideal of “majority rule” is primarily ensured through
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