The pendulum of fundamentalism in the interaction between the founding power and fundamental rights Looking at the US legal system

Document Type : Research Paper

Authors

1 Payam Noor university

2 University of Qom

3 Department of Public Law, Faculty of Law, Qom University, Qom, Iran

10.22099/jls.2024.49074.5061

Abstract

In accordance with the change in the functional foundations of the state at the beginning of the Renaissance era, the influential factors and elements in the establishment of this political power also underwent fundamental changes. Based on this, the essence and goal-foundation approach of political power became the mechanism-foundation approach. This change of approach led to the emergence of elements and concepts such as founding power and fundamental rights. The founding power was one of the prominent elements of the establishment of political power and fundamental rights became one of the main functions and goals of this power. The fundamental issue in this regard comes back to the connection between the constituent power element and the function of protecting people's fundamental rights. Based on this, the main question of the current research is that the regulation between the constituent power element and the fundamental rights and the priority of each one is done according to what quality and based on what criteria?The findings of this research, which was carried out in a descriptive-analytical manner and using library sources, show that fundamentalism as a governance ideology using tools such as judicial review of the regulatory role and giving priority to each of the founding powers and rights is responsible for the basic as required by the conditions.

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Journal of Legal Studies

Articles in Press, Accepted Manuscript
Available Online from 28 March 2024

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