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Wednesday, January 17, 2007

Pragmatic Originalism

So McGinnis & Rappaport have uploaded their "Pragmatic Defense of Originalism" to SSRN and the Northwestern Law Review's on-line companion.  Here's the abstract:

In this brief essay, we offer a new defense of originalism that focuses on its consequences. We argue that interpreting the Constitution according to its original meaning is more likely to produce good results today than non-originalist theories of interpretation. We thus offer a defense of originalism that transcends previous arguments that originalism is to be preferred because of the constraints it imposes on judges or its consonance with the rule of law.

Our argument proceeds in four steps. First, entrenched laws that are desirable should take priority over ordinary legislation, because such entrenchments operate to establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals. Second, appropriate supermajority rules tend to produce desirable entrenchments. Third, the Constitution and its amendments have been passed in the main under appropriate supermajority rules and thus the norms entrenched in the Constitution tend to be desirable. Finally, this argument for the desirability of the Constitution requires that judges interpret the document based only on its original meaning because the drafters and ratifiers used only that meaning in deciding to adopt constitutional provisions.

Although I am a big fan of McGinnis & Rappaport's attention to supermajoritarianism -- and, indeed, draw heavily from their important work in my recent article on jury decision rules -- I can't really make heads-or-tails of this paper.  My thoughts after the jump.

It begins by offering what they think is a bold claim: that pragmatism (understood as adjudication in light of consequences) can be made consistent with originalism (understood as interpretation in light of the original meaning of constitutional provisions).  Of course, plenty of people think of originalism as a "pragmatic" choice for constitutional interpretation: it gets better results on a rule of law dimension; it may get better results on a judicial discretion dimension; etc.  So I'm far from convinced that this first gambit is particularly new.  It is a classic rule-utilitarian approach to the question of interpretation: we are for good results -- and originalist methodologies get us those results on the whole.  But the kind of "results" and "consequences" McGinnis & Rappaport are interested in are the sort of legitimacy/rule of law results that have always interested a large group of originalists, not the sort of day-to-day empirical results that concern the pragmatists like Posner.

Here's where supermajoritarianism comes in, supposedly: Decisions, texts, and policies adopted through the rigorous structures of supermajoritarian rules are better (on the whole) than those adopted through "mere" majoritarian rulemaking.  So we ought to embrace the original meaning of those supermajoritarian decisons, texts, and policies.

I don't think this makes much sense.  There is little reason to believe that constitutional provisions adopted under supermajoritarian rules are necessarily better than those adopted under different decision rules: The Civil Rights Act of 1964 might be "better" than the limited protections of the 14th Amendment.  In any case, I'm not sure how one is supposed to do these sorts of calculations about which processes get "better" results: supermajoritarian rules might be better for structural and constitutional provisions (and jury decision rules) -- but would be terrible for other kinds of decisions. 

Even if one could grant that supermajoritarian decisions are "better," it remains far from clear that originalism is the only -- or even the most appropriate -- response.  One could be "purposivist," trying to uncover the underlying principles of any supermajoritarian deal.  One could be "intentionalist," emphasizing, say, the intentions of the pivotal voters required to get any supermajoritarian deal passed.  One could be a dynamic textualist, rather than focusing on original meanings or original expected applications.  In short, we're back to where we started: even if you agree that constitutional provisions are "good" and "legitimate," you still need a theory to tell us how and why we should read them historically.

I'm sure I've missed something here because I read the paper very quickly.  But the basic argument just doesn't seem to follow.

Posted by Ethan Leib on January 17, 2007 at 01:07 AM in Article Spotlight | Permalink


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John, I imagine the originalist could well argue that originalism does not depend on the notion of a single original meaning, but simply a range of acceptable interpretations. Justice Scalia has said as much. But even this assumes a certain determinacy of language, as Professor Rosenthal suggests.

I think indeterminacy is a serious problem undermining even the later variants of originalism (i.e., original public meaning, etc.). On a related note, I also think that we do not follow rules in the manner that most models of originalism assume that we do. I've written on the latter here.

(Hey Aaron)

Posted by: Daniel Goldberg | Jan 17, 2007 10:39:37 PM

I share in the interest in supermajoritarianism and entrenchment. But I also have questions about whether supermajoritarian decisions are better. If we are willing to say that a supermajoritarian decision at Time 1 is reliably better than a simple majoritarian decision at Time 1, from that I'm not convinced it follows that a supermajoritarian decision at Time 1 is reliably better than a simple majoritarian decision at Time *2*. (In the extreme case, imagine the people at Time 1 are radically ill-informed.)
Also, perhaps I'm dense but I would like to hear more about why exactly the ratification of the Constitution (as opposed to the Article V amendment process) was so supermajoritarian, as compared to our de facto supermajoritarian legislative process. That 9 states were supposed to agree doesn't seem enough to me to establish that.

Posted by: Aaron | Jan 17, 2007 8:31:09 PM

The problem identified by the previous post is a serious one for any "pragmatic" defense of originalism. If there is no reasonably determinate meaning of a constitutional provision, then we cannot expect originalism to lead to disciplined and predictable results. Yet originalists rarely defend their implicit assumption that constitutional provisions have reasonably determinate original meanings. Certainly McGinnis and Rappaport do not.

My own view is that many of the open-ended provisions of the Constitution were adopted precisely because they had no especially fixed meaning, and therefore were able to be sold as compromises that could better obtain the necessary supermajority support. If that is right, then the requirement of a supermajority -- which is central to McGinnis and Rappaport's views -- actually makes it less likely that a constitutional provision will have a determinate original meaning. I have posted on SSRN a paper making an along these lines with respect to the Due Process Clause at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929217

Larry Rosenthal
Chapman University School of Law

Posted by: Lawrence Rosenthal | Jan 17, 2007 3:40:52 PM

Isn't the assumption that there is a single original meaning itself questionable? We have no idea what some parts of the Constitution mean (consider Seth Tillman's piece on Art. I, sec. 7, cl. 3) and other parts of there are competiting original meanings for other parts of the Constitution (e.g., 2d Amendment). Moreover, consider Easterbrook's attack on the use of legislative history; surely that applies with equal force to the Constitution. Judges are not historians (or at least very good ones) and trying to divine a single original meaning from a collaborative document is quixotic to say the least. In light of the obvious flaws of their theory, I can only surmise that McGinnis and Rappaport are grasping for an interpretive method that will ultimately support particular political positions.

Posted by: John Marshall | Jan 17, 2007 10:43:09 AM

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