Originalism and the Good Constitution

Originalism and the Good Constitution

JOHN O. McGINNIS
MICHAEL B. RAPPAPORT
Copyright Date: 2013
Published by: Harvard University Press
Pages: 308
https://www.jstor.org/stable/j.ctt6wpqr5
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  • Book Info
    Originalism and the Good Constitution
    Book Description:

    Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities--both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can originalism be justified, given the exclusion of African Americans and women from the Constitution and many of its subsequent Amendments? What is originalism's place in interpretation, after two hundred years of non-originalist precedent? A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, now the most prominent theory of constitutional interpretation.

    eISBN: 978-0-674-72626-0
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[x])
  3. 1 ORIGINALISM: ITS DISCONTENTS AND THE SUPERMAJORITARIAN SOLUTION
    (pp. 1-18)

    Originalism—the view that the Constitution should be interpreted according to its original meaning—has been an important principle of constitutional interpretation since the early republic. James Madison, the father of the Constitution, wrote: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable . . . exercise of its powers.”¹ Today this theory has prominent adherents on the...

  4. 2 THE NATURE OF THE ARGUMENT
    (pp. 19-32)

    In this book, we argue that a constitution enacted pursuant to appropriate supermajority rules is likely to be a good one and that securing the benefits of such a constitution requires that it be interpreted using originalist methods. Our argument involves two basic claims. First, we maintain that a good or desirable constitution is one that promotes the welfare of the people and that such a constitution should be followed. Second, we hold that passing a constitution through a strict supermajoritarian process provides the best method for discovering and enacting a good constitution.

    In this chapter, we attempt to clarify...

  5. 3 THE SUPERMAJORITARIAN THEORY OF CONSTITUTIONALISM
    (pp. 33-61)

    In this chapter, we explain why strict supermajority rules are very likely to generate a good constitution—either a genuinely good or a pretty good constitution. Such supermajority rules create the consensus and nonpartisanship necessary for fostering allegiance to a constitution that desirably regulates politics and society. Supermajority rules also afford the deep deliberation that helps correct for difficulties that legislators have in framing constitutional provisions that are designed to endure. Finally, supermajority rules generate a veil of ignorance that helps promote rights for minorities.

    In showing that supermajority rule provides an appropriate mechanism for constitution making, we use two...

  6. 4 THE COMPLIANCE OF THE US CONSTITUTION WITH DESIRABLE SUPERMAJORITY RULES
    (pp. 62-80)

    In the previous chapter, we showed why a strict supermajoritarian process is the best mechanism for generating a good constitution. In this chapter, we start the process of showing that the rules for enacting and amending the US Constitution largely follow this prescription. First, we show that these rules impose strict supermajoritarian requirements and that such requirements have produced some of the most beneficial constitutional provisions. Second, we argue that the supermajority requirements imposed by these rules are, in the main, not too stringent. Third, we show that there is a rough symmetry between the rules for originating the US...

  7. 5 THE CONTINUING DESIRABILITY OF AN OLD SUPERMAJORITARIAN CONSTITUTION
    (pp. 81-99)

    In this chapter, we discuss why it is desirable to interpret a supermajoritarian constitution based on its original meaning. It is the constitution’s original meaning that secures the supermajoritarian consensus that makes the document likely to be beneficial. Thus, a constitution will be beneficial today only if it is interpreted according to its original meaning.

    We recognize that one might question whether a constitution interpreted according to its original meaning would continue to be desirable over time. Supermajority rule might generate superior norms compared to majority rule during the years immediately following the constitution’s enactment. But wouldn’t the benefits generated...

  8. 6 SUPERMAJORITARIAN FAILURE, INCLUDING THE EXCLUSION OF AFRICAN AMERICANS AND WOMEN
    (pp. 100-115)

    So far, we have developed the theory that constitutions enacted pursuant to strict supermajority rules are likely to be desirable. And we have shown that the US Constitution conforms to this supermajoritarian theory to a remarkable extent. Yet we have also recognized that the Constitution has departed from the requirements of the desirable constitutional process in several important ways. Enactment and amendment, for instance, have been accomplished by states rather than by people, thereby giving greater weight to the votes of people in less populous states. Most importantly, African Americans and women were excluded from the original process of constitutional...

  9. 7 ORIGINAL METHODS ORIGINALISM
    (pp. 116-138)

    In Chapter 5, we argued that our normative justification for originalism calls for interpreting the Constitution using the interpretive methods that the enactors would have deemed applicable to it. Using the enactors’ interpretive methods ensures that the provisions have the meaning that the enactors expected and thereby reflects the costs and benefits of the provisions that the enactors would have calculated. It is the balance of such expected costs and benefits that obtained the consensus support that is the mark of the Constitution’s beneficence.

    Although the original methods have a close connection to the normative justification for following the Constitution’s...

  10. 8 ORIGINAL METHODS VERSUS CONSTITUTIONAL CONSTRUCTION
    (pp. 139-153)

    Our original methods approach stands in sharp contrast to the theories of constitutional construction. Such theories are a central part of what is sometimes called the new originalism, but which we believe is more accurately called constructionist originalism.¹ The constructionist originalist theorists believe that original meaning controls the interpretation of provisions that are not ambiguous or vague, but that constitutional construction allows judges and other political actors to resolve ambiguities and vague terms based on extraconstitutional principles.

    For instance, Randy Barnett, a leading constructionist, argues that a clear provision, such as the requirement that the president be thirty-five years of...

  11. 9 PRECEDENT, ORIGINALISM, AND THE CONSTITUTION
    (pp. 154-174)

    Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. But if originalism cannot be reconciled with precedent, it becomes a theory of limited appeal and usefulness. Originalism would then require ignoring precedent even when doing so has enormous costs. It would also conflict with the practice of almost every justice and judge in the nation’s history. As a result, originalism would be extremely unlikely to be followed.

    In this chapter and the next, we challenge this common view of originalism. We argue that nothing in the Constitution forbids judges from following precedent. Rather,...

  12. 10 THE NORMATIVE THEORY OF PRECEDENT
    (pp. 175-196)

    Because precedent is not significantly constrained by the Constitution but instead is largely a matter of common law and statute, it is useful to discuss the optimal precedent approach in constitutional cases. In the first instance, the Supreme Court can apply such rules as a matter of common law. Should Congress become dissatisfied with the rules that the Court applies, Congress can legislate such rules through statute. In this chapter, we offer a framework for formulating sound rules of precedent, propose two such rules, and tentatively suggest a third.

    We initially examine the relative benefits of following the original meaning...

  13. 11 IMAGINING AN ORIGINALIST FUTURE
    (pp. 197-208)

    We end our defense of originalism by imagining a world where originalism is the dominant view of constitutional jurisprudence. Such a world would improve our polity, creating both better judicial decisions and a more vigorous constitutional politics. It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented. It bears no resemblance to the world that critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles. Only through a systematically originalist jurisprudence can constitutional law become what it must be...

  14. NOTES
    (pp. 209-284)
  15. ACKNOWLEDGMENTS
    (pp. 285-286)
  16. INDEX
    (pp. 287-298)