Originalism and the Good Constitution

John O. McGinnis, Michael B. Rappaport

• Editorial: Harvard University Press
• Año: 2013
• ISBN:
  9780674727366
• Categoría: Law
• Categoría: Public Law

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 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, which is now the most prominent theory of constitutional interpretation.

1

ORIGINALISM: ITS DISCONTENTS AND THE SUPERMAJORITARIAN SOLUTION

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 Supreme Court in Justice Clarence Thomas and, at least in “faint-hearted” form, Justice Antonin Scalia. Heller v. District of Columbia recently featured both majority and dissenting opinions that were wholly originalist in style. Legal academics across the political spectrum espouse some version of originalism.²

Nevertheless, originalism continues to be plagued by challenges, the most salient being how it is to be justified. But originalism is also confronted by many other fundamental questions. What is the precise nature of an originalist method of interpretation? Isn’t it wrong for the living to be governed by the dead hand of the past? How can an originalist jurisprudence address the hundreds of judicial decisions inconsistent with original meaning that are now deemed the law of the land?

A more general sense of disquiet underlies these specific questions. Law in general, and constitutional law in particular, should be measured by its contribution to our current welfare. Originalism seems to be focused on the distant past rather than the present and, on its face, does not concern itself with desirable results. Thus, it seems vulnerable to the central claim of living constitutionalism—that interpretation of the Constitution should be guided by a modern vision of a good society that likely differs substantially from that of the long-dead Founders.

In this book, we present a new normative defense of constitutional originalism that connects this interpretive method directly to the concept of a good constitution. We argue that originalism advances the welfare of the present-day citizens of the United States because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories. The benefits of ordinary legislation for society and the proper theory of its interpretation are routinely connected to the virtues of lawmaking by a democratic legislature. We likewise connect the benefits of a desirable constitution and the proper theory of constitutional interpretation to the virtues of the constitution-making process.

A constitution that is enacted under a strict supermajority process is likely to be desirable because such a process has features appropriate for determining the content of constitutional provisions, just as majority rule is often appropriate for determining the content of ordinary legislation. Just as we interpret ordinary legislation according to the meaning given by the enacting legislature (whether we assess that meaning through text, intent, or purpose), so too should we interpret the Constitution according to its original meaning to preserve the benefits of the widespread agreement that gave it birth.

Although this justification of originalism is new, it has been hiding in plain view. One of the dominant ideas of the US Constitution is its use of supermajority rules to create good government. There are various specific supermajority rules in the Constitution, from the requirement that a treaty be ratified by two-thirds of the Senate to the requirement that a member of the House be expelled only through a two-thirds vote of his or her colleagues.³ Even ordinary legislation, which may seem to be majoritarian, is in reality enacted by a procedure—passage by bicameral houses and presentment to the president—that is essentially an implicit and mild supermajority rule. We identify whether a provision is in the Constitution by asking whether it passed through a specific supermajority process—either through the original enactment under Article VII or through the amendment process of Article V. It is not too much to call the US Constitution “a supermajoritarian constitution.”

Supermajoritarianism was not merely a theme of the Constitution but also a distinctively American contribution to the science of constitutionalism. Supermajoritarianism had not been an express feature of the English tradition nor had it often been recommended by past political philosophers. Just as the Americans had developed written constitutions by adapting English ideas to the new realities of the American experience, so did they develop supermajority rules. While the British had used a monarchy and hereditary aristocracy to place limits on democracy, the Americans, as republicans, eschewed these devices and substituted supermajority rules as one means of balancing the different interests in a nation. Given the centrality of supermajority rules to the US Constitution, it is not surprising that one kind of supermajority rule—the stringent kind that applies to constitution making itself—provides the key to understanding what makes the Constitution enduringly desirable and justifies interpreting it according to its original meaning.

This introductory chapter first outlines originalism’s greatest unresolved problems. We then briefly explain how our theory resolves these difficulties. The purpose here is not to provide a detailed defense of our theory, which is what the rest of the book does, but to sketch how that theory, in an interconnected way, tempers originalism’s discontents. It does so by showing that stringent supermajority rules are likely (and more likely than other methods, such as judicial fabrications) to generate good constitutional provisions. Thus, the beneficence of the Constitution is connected to the supermajoritarian process from which it arose. Originalism is the appropriate method of constitutional interpretation because it captures the meaning that passed through the supermajoritarian process. Consequently, the results generated by originalism are likely to be beneficial.

The Problems of Originalism

Existing Justifications for Originalism

Originalism has been defended in many ways. Some advocates focus on the good consequences that flow from originalism, while others emphasize the importance of following certain normative principles. But in our view, none of the existing justifications is adequate. Perhaps the least persuasive defense is that we should be originalists because the constitutional enactors were originalists. But this argument is circular because it purports to defend the authority of the original Constitution by appealing to the views of the original constitution makers.

Another nonconsequentialist argument for originalism is that it follows from the concept of law. If we are to be faithful to law, we must follow the law’s original meaning. But this argument too is problematic. First, opponents of originalism are not generally arguing that the Supreme Court should not act lawfully. Rather, they may be employing a different approach to legal adjudication, one that includes prior cases and current normative principles as important guides to legal decision making. While one may disagree with this approach, it is hard to argue that the concept of law necessarily entails this one particular view of how the meaning of law is to be cashed out in constitutional decision making. Many legal systems, including the common law, seem to function through decision making that does not absolutely privilege a prior text. Finally, this defense would seem to suggest that we should follow the original meaning in constitutional decision making regardless of the quality of the Constitution. But it seems doubtful that originalism would have much appeal if the Constitution reflected the policies of a brutal dictator. Rather, the appeal of originalism seems to be implicitly linked to the high quality of the US Constitution.

Others argue that we should follow originalism because it comports with democracy, but this argument fails.⁴ It is true that originalism requires judges to uphold the actions of an elected legislature or executive when the Constitution authorizes such action. But originalism also requires judges to strike down the actions of such entities when their actions conflict with the Constitution’s original meaning. Originalism thus sometimes conflicts with the results of the contemporary democratic process. It might be argued that decisions overturning current legislation are democratic because they follow the democratic decision of the enactors of the Constitution. But simple invocations of democracy do not tell us why we should prioritize that previous democratic decision over the more recent one.

Other justifications of originalism are based on consequences or substantive policy. Some originalists, including Justice Antonin Scalia, have argued that originalism offers clearer rules to constrain judges than do other interpretive approaches.⁵ This argument has been challenged as an empirical matter. But even assuming that it contains some truth, as we believe it does, it is nevertheless not enough to sustain a consequentialist case for originalism. The benefits of judicial constraint are limited if judicial decisions, even though they are not discretionary, are still generally harmful. Conversely, if constraint is the overriding objective, nonoriginalist doctrine may sometimes provide more constrained rules than the original meaning.⁶

Randy Barnett has argued that the Constitution’s original meaning is likely to lead to just results and therefore we should follow that meaning.⁷ We agree that the goodness of the Constitution is a potentially strong argument for originalism. But Barnett’s argument assumes a thick theory of the good constitution. A thick theory, such as libertarianism or socialism, is not appropriate as the basis for a constitution in a pluralistic society in which the people hold differing views about the good (or justice). A constitution based on a thick theory will be open to attack by those who do not hold that particular view of the good. Instead, a constitution in a pluralistic society should rest to some extent on a compromise among people’s views of the good in that society.

A thick theory of this kind may also be too strong to justify originalism because changed circumstances are likely in the future to lead the original meaning to consequences not in line with the substantive theory of the good constitution. One would then be forced to depart from the Constitution or to treat it as nonbinding. By contrast, our supermajoritarian theory imposes a weaker constraint. There may be many different constitutions that represent reasonable compromises among contending views and that are good enough to be treated as good constitutions. Thus, many changes in circumstances would still leave the Constitution a good one, especially given the ability of the amendment process to supply additional compromises.

Keith Whittington has sought to justify originalism based on a theory of popular sovereignty. For Whittington, the Constitution is understood as a creation of the whole people acting as a sovereign. Originalism, then, is justified as a means of both preserving the people’s prior enactment and protecting their ability to pass new constitutional provisions in the future. Such acts of popular sovereignty constrain ordinary politics, creating “the security of a stable political system in which the fundamental decisions have already been made.”⁸

We agree with Whittington that the normative case for originalism depends on a constitutive act of the whole people of the nation that creates a framework for ordinary politics. We also agree that originalism depends on the capacity of the people to change the Constitution through the amendment process. But we do not believe that popular sovereignty is the best way of justifying either the Constitution or originalism. If the enactment of constitutions by the people collectively led systematically to undesirable constitutions, then popular sovereignty would not be attractive from a normative perspective. This conclusion suggests that popular sovereignty is not the primary value we care about in considering a constitution or its interpretation.

It might be argued in response that popular sovereignty does in fact generally lead to good results. After all, the people are choosing a constitution for themselves. Just as individuals usually make good choices for themselves, the argument would run, so do the people collectively. But there is a significant difference between individual choice and collective choice. It is clear when an individual acts, but it is not at all clear within popular sovereignty theory when the people act. As Whittington himself admits, the idea that the people are choosing when they enact a constitution is a metaphor.⁹ Depending on which rules govern their choice, very different entrenchments could result. Some theories of popular sovereignty hold that the people can act when a simple majority makes a choice.¹⁰ But a mere majority can easily take actions that harm the minority. To avoid all risk of such harm, something close to unanimity is required for the people to act.¹¹ But that requirement would block almost all constitutions from being enacted.

In our view, the best way to define the actions of the people concerning constitutions is as actions taken under strict supermajority rules. In this way, a mere majority cannot speak in the name of the people, but at the same time a very small minority cannot block a constitution. In Chapter 3, we show how this kind of supermajority rule in fact likely leads to desirable results. Thus, while Whittington is correct that the case for originalism depends on a constitution’s being generated by popular choice, our theory is essential to determine the appropriate rules by which the people exercise that choice.

The approach that comes closest to our own is expressed by Akhil Amar in his article “The Document and the Doctrine.”¹² Amar attempts to justify primarily following the meaning of the document, rather than judicial precedent, based on the goodness of the document and the advantages of following it. He views the goodness of the document as deriving in large part from how it was enacted, coming from the people in a system that promotes deliberation, long-term decision making, and the benefits of multiple minds. Moreover, he argues that it has improved substantially over time through the amendment process. The goodness of the document is not based on a simple approach, but on one that appears to take account of the multiple needs of a complex society unfolding over time.

But Amar’s argument is not as clear and systematic as would be desirable. He points out advantages of the process of enactment, but does not provide a theoretical or comprehensive discussion of what a desirable process looks like. For example, “The Document and the Doctrine” does not even make clear whether Amar believes a supermajoritarian or majoritarian constitutional enactment process is superior. We are also unclear about how he believes the document should be read—whether it should be interpreted solely as an originalist textualist would interpret it, as he suggests at some points, or whether it may also be interpreted with an eye to reach desirable results in particular cases, as he seems to suggest at other times. Although we agree with many of the insights in Amar’s article, we believe that they need clearer and more methodical development before one can determine whether they state a persuasive case for originalism.

Our argument justifying originalism expands on the most desirable features of its most persuasive predecessors. Like Justice Scalia, we defend originalism on the basis of consequences, but we enlarge the scope of consequences to include the beneficence of rules rather than merely their clarity. Like Keith Whittington, we stress that originalism reflects fidelity to the authoritative decision of the people, but we show how supermajority rules are necessary to capture an authoritative decision of a whole people, including minority views. Like Akhil Amar, we emphasize that the advantages of the enactment process are essential to defending the virtues of originalism, but we provide a systematic account of what those virtues are. Thus, while our argument is new, it has a family resemblance t...