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Originalism and the Good Constitution
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 following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism's place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?
A fascinating counterfactual they pose is 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, which is now the most prominent theory of constitutional interpretation.
The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism's place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?
A fascinating counterfactual they pose is 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, which is now the most prominent theory of constitutional interpretation.
- GenresLaw
312 pages, Hardcover
First published November 1, 2013
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May 17, 2015
The thesis of this book is that judges ought to interpret legal texts—including the Constitution—according to their original meaning because of the good benefits that result from these interpretations. These good results derive from the supermajoritarian processes required both for amending and ratifying the Constitution. Amendments require approval of two-thirds of both houses of Congress and ratification by three-fourths of the states. The yet unused process of a constitutional convention also requires approval from two-thirds of state legislatures. Furthermore, the original ratification of the constitution also required approval from 9 of the 13 original states.
The supermajoritarian requirements of entrenching provisions into the constitution lead to a number of benefits. First, the entrenched provisions enjoy a great deal of consensus. Arguing in a vein similar to Alexander Bickel in "The Morality of Consent," McGinnis and Rappaport argue that a constitution of value will be respected by a large proportion of the population and that its provisions gain legitimacy in virtue of the fact that the people consented to those provisions. Second, the supermajoritarian provisions lead to an absence of partisanship in embedding the basic foundational bedrock of the political system. It is difficult for any party to clear the supermajoritarian hurdles if their proposed entrenchment is simply a unique plank in that party's platform. Third—and perhaps most importantly—the supermajoritarian requirements result in a protection of minorities' interests. When entrenching a provision that will require a supermajoritarian vote to repeal, voters and their representatives are unsure whether they will be in the majority or minority for the duration of the entrenchment's existence. As a result, the provisions that are passed usually reflect a respect for minorities since no voters will know for sure whether they themselves will be in the minority in, say, 30 years or so.
McGinnis and Rappaport claim that only a respect for the original meaning of the Constitution will preserve these supermajoritarian features. When judges update the Constitution according to their policy preferences, provisions become entrenched with a simple majority of a panel of unelected judges who likely do not represent the interests of the population at large. For the supermajoritarian features to have their desirable effects, then, the original meaning must be used in interpretation.
A reasonable objection to this argument is that the Constitution is simply too hard to amend. The greatest value for me in reading this book was the response made to this claim. McGinnis and Rappaport do an excellent job explaining that oftentimes judicial updating of the Constitution precludes the successful passage of amendments. After all, they claim, why would anyone undertake the daunting task of passing an amendment when the Supreme Court will embed the values of those provisions into the Constitution anyway? The authors point to the failure of the Equal Rights Amendment during the 1970s, which the Supreme Court had already essentially given effect to in the 1971 decision of Reed v. Reed. Later, in Frontiero v. Richardson, the Supreme Court established heightened judicial scrutiny for cases involving sexual discrimination. This and other similar examples are meant to show that the Supreme Court, through judicial updating, achieved what the amendment process would have achieved on its own.
The authors spend the rest of the book applying their consequentialist theory to the standard problems with originalism—the "dead hand" of the past argument, the problem with precedent, etc. The argument concerning what to do with nonoriginalist precedent is interesting. The authors claim that, as originalism leads to desirable consequences, so too does following precedent. Following precedent allows law to be clearer and more predictable. It also protects reliance interests of those who act in expectation that the precedent will be followed. The authors argue that these benefits ought to be weighed against the benefits of originalism. They claim that judges ought to overrule precedent when 1) doing so would not come at high costs to reliance interests or 2) there is already a large consensus in favor of overruling the precedent. Hence, United States vs. Lopez was correctly decided even though it overruled a host of precedents from the New Deal era. This overruling did not come at a high cost since it did not strike at the core of Congress's ability to regulate "core economic matters" like regulating manufacturing, labor, and production. Likewise, Brown v. Board of Education was correctly decided since there was already a large consensus in favor of overruling Plessy v. Ferguson. I suppose a similar argument could be made if the Supreme Court ever had the opportunity to overrule Korematsu v. United States.
I'm uneasy about this formulation of how originalists ought to deal with nonoriginalist precedent. It seems that the first criterion makes originalism at least in part results-oriented. The whole argument of originalism is that judges ought not consider results in deciding cases and instead make decisions based on the relevant law as construed by its original meaning. Determining the cost of overruling nonoriginalist precedent seems to undermine this at least partially. The second criterion seems to fall on the same sword. Not only is this criterion results-based, but it is also unclear as to how we determine whether there is consensus in favor of an overruling. Are we to rely on public opinion polls? Do judges just try to feel it out? It seems rather vague.
On the flip side, however, this approach does seem to make originalism more realistic and more palatable, which seems to be the goal of the authors as they claim in their conclusion that they are designing an originalism which "bears no resemblance to the world that critics of originalism fear." In this, there is certainly value. Perhaps we are all destined to be, like Justice Scalia, "faint hearted originalists." If that is the case, then perhaps the view articulated by McGinnis and Rappaport represents the best way to be such creatures.
The supermajoritarian requirements of entrenching provisions into the constitution lead to a number of benefits. First, the entrenched provisions enjoy a great deal of consensus. Arguing in a vein similar to Alexander Bickel in "The Morality of Consent," McGinnis and Rappaport argue that a constitution of value will be respected by a large proportion of the population and that its provisions gain legitimacy in virtue of the fact that the people consented to those provisions. Second, the supermajoritarian provisions lead to an absence of partisanship in embedding the basic foundational bedrock of the political system. It is difficult for any party to clear the supermajoritarian hurdles if their proposed entrenchment is simply a unique plank in that party's platform. Third—and perhaps most importantly—the supermajoritarian requirements result in a protection of minorities' interests. When entrenching a provision that will require a supermajoritarian vote to repeal, voters and their representatives are unsure whether they will be in the majority or minority for the duration of the entrenchment's existence. As a result, the provisions that are passed usually reflect a respect for minorities since no voters will know for sure whether they themselves will be in the minority in, say, 30 years or so.
McGinnis and Rappaport claim that only a respect for the original meaning of the Constitution will preserve these supermajoritarian features. When judges update the Constitution according to their policy preferences, provisions become entrenched with a simple majority of a panel of unelected judges who likely do not represent the interests of the population at large. For the supermajoritarian features to have their desirable effects, then, the original meaning must be used in interpretation.
A reasonable objection to this argument is that the Constitution is simply too hard to amend. The greatest value for me in reading this book was the response made to this claim. McGinnis and Rappaport do an excellent job explaining that oftentimes judicial updating of the Constitution precludes the successful passage of amendments. After all, they claim, why would anyone undertake the daunting task of passing an amendment when the Supreme Court will embed the values of those provisions into the Constitution anyway? The authors point to the failure of the Equal Rights Amendment during the 1970s, which the Supreme Court had already essentially given effect to in the 1971 decision of Reed v. Reed. Later, in Frontiero v. Richardson, the Supreme Court established heightened judicial scrutiny for cases involving sexual discrimination. This and other similar examples are meant to show that the Supreme Court, through judicial updating, achieved what the amendment process would have achieved on its own.
The authors spend the rest of the book applying their consequentialist theory to the standard problems with originalism—the "dead hand" of the past argument, the problem with precedent, etc. The argument concerning what to do with nonoriginalist precedent is interesting. The authors claim that, as originalism leads to desirable consequences, so too does following precedent. Following precedent allows law to be clearer and more predictable. It also protects reliance interests of those who act in expectation that the precedent will be followed. The authors argue that these benefits ought to be weighed against the benefits of originalism. They claim that judges ought to overrule precedent when 1) doing so would not come at high costs to reliance interests or 2) there is already a large consensus in favor of overruling the precedent. Hence, United States vs. Lopez was correctly decided even though it overruled a host of precedents from the New Deal era. This overruling did not come at a high cost since it did not strike at the core of Congress's ability to regulate "core economic matters" like regulating manufacturing, labor, and production. Likewise, Brown v. Board of Education was correctly decided since there was already a large consensus in favor of overruling Plessy v. Ferguson. I suppose a similar argument could be made if the Supreme Court ever had the opportunity to overrule Korematsu v. United States.
I'm uneasy about this formulation of how originalists ought to deal with nonoriginalist precedent. It seems that the first criterion makes originalism at least in part results-oriented. The whole argument of originalism is that judges ought not consider results in deciding cases and instead make decisions based on the relevant law as construed by its original meaning. Determining the cost of overruling nonoriginalist precedent seems to undermine this at least partially. The second criterion seems to fall on the same sword. Not only is this criterion results-based, but it is also unclear as to how we determine whether there is consensus in favor of an overruling. Are we to rely on public opinion polls? Do judges just try to feel it out? It seems rather vague.
On the flip side, however, this approach does seem to make originalism more realistic and more palatable, which seems to be the goal of the authors as they claim in their conclusion that they are designing an originalism which "bears no resemblance to the world that critics of originalism fear." In this, there is certainly value. Perhaps we are all destined to be, like Justice Scalia, "faint hearted originalists." If that is the case, then perhaps the view articulated by McGinnis and Rappaport represents the best way to be such creatures.
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December 30, 2014This is the latest important book on originalism in theory and practice. McGinnis and Rappaport introduce at least three important claims: First, that originalism is normatively valuable because of its connection to the supermajoritarian process used to enact and amend the Constitution. Second, that originalists should use the “original methods” of legal interpretation. And third, that we should imagine a culture of originalism, in which people took the constitutional amendment process seriously, rather than relying on judges to update the Constitution. In my view, the second and third claims are more powerfully demonstrated than the first, but it is a strength of their book that one can engage separately with each claim. —William Baude
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