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Tuesday, October 16, 2007

More on Pragmatism and Originalism

David Law (USD/UCSD) and David McGowan (USD) have put a few more nails in the coffin of McGinnis & Rappaport's recent effort to marry pragmatism and originalism in the Northwestern University Law Review's Colloquy; the first part of their reply is up at the Colloquy.  Some of their points expand upon points I made 7 months ago in the same venue; others are wholly new reasons to reject McGinnis & Rappaport's enterprise.  I agree with all of their arguments and think they did a wonderful job.

Previous coverage of the debate can be found here, here, and here.

Posted by Ethan Leib on October 16, 2007 at 01:20 PM in Article Spotlight | Permalink


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Disagreeing with you is not the same as being an "ideologue." I fear you missed the point of my response; perhaps I went too quickly. If a supermajority rule self-consciously excludes large classes of citizens (women and most blacks), that seems sufficient for me to be skeptical that its products are entitled to special legitimacy. Even if you told me that some women voted during ratification (by pretending to be men, say) or that some free blacks voted, I remain skeptical of a set of exclusionary rules that were more or less racist and sexist. Since racist and sexist rules were the background of who got to be included in the relevant population for the purposes of the "supermajority rule," I have a hard time taking seriously the idea that we ought to embrace as especially legitimate any product of such a supermajority. None of this has to do with biology -- but it does have something to do with ideology. Maybe that makes me an ideologue, though I find it hard-pressed to suggest that I'm a racist on account of this view.

You seemed to have changed the terms of the conversation with your focus on "conceptions of citizenship," robustness, and the realm of the possible. Maybe you have a point -- though not one that help M & R much, who, again, already concede that this is a real objection. I do, however, think it is at least instructive that to get blacks and women full equality, not only was amendment of the document necessary but an entire cultural revolution in which we are still engaged.

Posted by: Ethan Leib | Oct 19, 2007 11:11:19 AM

Telling us that some free blacks voted to ratify is a bit like telling us that some of the men that voted to ratify were actually biological females.

So your position is that a contradiction is not relevant? Then I suppose if a categorical statement cannot be contradicted, it must always be right. Nice to know there is no conceptually possible argument that can defeat the arguments you believe in. I believe that is the definition of being an ideologue.

The objection to M&R is that ratification did not require a supermajority, and the proof of that is the voting base was not diverse because our conception of citizenship at the time was impoverished. The two points are not necessarily related. Without having a supermajority for ratification, you can have a voting base sufficiently diverse to be functionally equivalent to a supermajority rule, so long as your conception of citizenship is sufficiently robust. It necessarily matters, then, that free blacks voted for ratification in a number of states, and that dissenters in Dred Scott used that as proof that the impoverished conception of citizenship in Taney's opinion was wrong. The point is not just that some blacks voted, but that many people at the time of ratification -- non-blacks, that is -- had a conception of citizenship robust enough to include free blacks as ratifiers. So it is absolutely nothing like biological females voting, because the point is not about biology. It's about the recognition that transition from slave to citizen is possible, which is a different conception of citizenship than one implied by a belief in racial castes, racial superiority, or the idea that racial categories are essentially biological. Since women weren't slaves, your point is wholly irrelevant, not to mention potentially racist.

Posted by: Contemporary Racism | Oct 19, 2007 8:02:35 AM

also, i should add that I thought one of L&M's arguments was misleading:

"Under Article VII, nine out of thirteen states were required to ratify the Constitution.[20] Today, that nine-thirteenths formula would require ratification by thirty-five out of fifty states (rounding up to the nearest whole number of states). . . This means that, under the Article VII formula used by the Framers, the Constitution could be ratified by a 70% supermajority of states containing less than one-third of the nation’s voters."

L&M do not note that the 30% of states that did not go along with ratification would not of course be subject to the constitution. thus, it's a bit strange to say that the Constitution could go into effect with less than 1/3 of those voting in favor of it. L & M seem to imply that under the Framer's approach, 35 of 50 states could ratify a constitution affecting all 50, which simply is not true. see Art VII. rather, the constitution would govern the 35 ratifying states, with at least half of each approving of it, and the 15 not ratifying would not be part of the "nation" -- L&M seem to think that even if a state did not ratify, that it should still be considered part of the country in determining what percentage of people voted for it. One may as well say that since China did not ratify the 27th amendment, that amendment only had around 20% support from the voting population in the "nation." L&M imply that a state should be considered part of the nation even if it never joined the nation; I don't see the logic in that.

again, i don't think M & R's article stands on its own two feet , regardless of L & M's criticisms (I am not convinced that supermajority rules are necessarily "better" and do not see how they compel an originalist approach) -- I would just prefer that L&M perform some tighter analysis regarding the fact that the document was affirmatively adopted by every subdivision rather than just make light of M & R's arguments (e.g. "'More is better' is an appealing slogan, but one that ultimately leads to ruinous results."). Ultimately, insofar as judges as concerned, I don't think it matters whether the Constitution was ratifed by 1/3, 2/3, or 3/3 -- regardless of the amount of support for it, that document is the only source of the judicial power, and courts cannot say that the document is illegitimate without at the same time undermining their own authority.

Posted by: andy | Oct 17, 2007 1:06:51 AM

I address that point (about the supermajoritarian baseline of "ordinary" legislation) in my reply -- concluding that M & R haven't addressed the issue. Their reply, oddly, ignored that aspect of my essay.

Posted by: Ethan Leib | Oct 16, 2007 10:27:26 PM

On the issue of how supermajoritiarian the ratification process was --
It seems important to me to keep the proper comparison in mind. Is a supermajority of states, which themselves use a majority decision rule, more supermajoritarian than some sort of purely aggregative majority vote? As L&M and Ethan say: Maybe, though not necessarily. But I believe that pure aggregative majoritarianism isn't the relevant baseline. The M&R argument is that supermajoritarianism makes the Constitution better than ordinary statutes. But the statutory lawmaking process isn't pure majoritarianism -- it too is supermajoritarian (due to bicameralism, presidential veto, etc.). So the real question, it seems to me, is whether the ratification process was more "super" than our normal supermajoritarian lawmaking process, not more "super" than a plebiscite. That makes the argument harder.

Posted by: Aaron | Oct 16, 2007 9:42:33 PM

fair enough.

Posted by: andy | Oct 16, 2007 7:39:32 PM

One could say we differ on who carries the burden of persuasion here. It seems natural to me to put it on M & R, who are the ones trying to get something out of the characterization (e.g., especial legitimacy and originalism). The founding may have been "spectacular" -- but saying more about why it was and what that means for us seems to be their burden. It is, after all, their argument we are all struggling to make sense of.

For what it is worth, I like your reply to L & M. But I think that it only shows what I tried to suggest in my earlier reply: that context is everything. M & R can't bootstap a finding of especial legitimacy onto a supermajoritarian decision rule because it is nominally supermajoritarian in some senses (and not in others); they have to tell us why a supermajoritarian rule in a particularized context is likely to lead to good results. You've offered one way to see why it might be a useful decision rule in the given context of the founding; but very little (central to their argument) follows from that thin thesis.

Posted by: Ethan Leib | Oct 16, 2007 7:30:37 PM

also, i hasten to add, that subdivisions' individually ratifying is more "spectacular" than an across the board vote assumes diversity; if every state were just like every other, then of course 51% in each state would occur just as easily as 51% across the board. that each subdivision (i.e. state) was diverse and self-interested, however, adds to the "superness" (tell Colbert I'm trademarking that word). i'm sure there is some poli sci or economics article out there that will prove that as a mathematical matter -- it's much harder to appease 20 self-interested groups of 5 persons each than it is to get 60 votes overall. again, i don't know that a constitution that appeases different groups is "better" than one that doesn't, but I am not willing to dismiss the argument as easily as L&M seem to.

Posted by: andy | Oct 16, 2007 7:19:46 PM

"the decision rule used within the states was majoritarian, not supermajoritarian, and (2) a supermajority of states was not necessarily equivalent even to a majority of citizens"

I guess that analysis just leaves me wanting more. I agree that there is something weird about using a supermajority of subdivisions rather than looking to number of people. For example, to use an even more extreme example than L&M's, a state could propose a constitution that says it received effect when a supermajority of each its county adopted it, further provide that a county would be deemed to have adopted it if 1/10 of its citizens (or electors or whatever) voted for it. In that case, we could have a supermajority of counties but not even a majority of people (of course, if only 1/10 of the people ended up voting for it, it'd probably be ignored, even if it were "official").

That being said, I think there is i something politically spectacular about the fact that the Constitution was ratifed by 13 states, even if only by about 1/2 or so of each state. L & M should confront head on the strong argument that 1/2 of each subdivision is, at the very least, a somewhat stronger "half" than 50% of the population as a whole. That a majority of 13 diverse states ratified a constitution is "super" in a way that a simply majority vote across the board is not, no? I'd like to see L&M address that point more squarely, rather than dismiss it as a "red herring."

I wonder what would have happened if in 1957 the EU decided that it could be formed just through half of European individuals in the six countries voting in favor of it, rather than by each country signing on. My guess is that the EU wouldn't have lasted long, assuming that it would even be recognized as legitimate.

Posted by: andy | Oct 16, 2007 7:08:28 PM


Thanks for your reactions. When you get to substance, you are always thoughtful. Perhaps unsurprisingly, I think L & M have the better argument on the 9/13 point (for reasons I suggested in my March 07 reply): M & R still need to defend the use of the 9 of 13 states as a "supermajoritarian" rule because (1) the decision rule used within the states was majoritarian, not supermajoritarian, and (2) a supermajority of states was not necessarily equivalent even to a majority of citizens. So all L & M are highlighting is that it seems only formalistic to assume that 9/13 state agreement counts as achieving "supermajoritarian" consensus.

Posted by: Ethan Leib | Oct 16, 2007 6:39:56 PM

"Go ahead and read it -- along with the replies -- and tell us what you actually think of the merits."

I just skimmed M & R and did not find it very convincing.

I also skimmed L & M and think they make good criticisms. But I was a bit bothered by their gliding past M &R's argument regarding the 9 out of 13 states requirement as "betray[ing] too great a fascination with the formal characterization of voting rules." It seems like, whenever someone wants to bash an originalist argument without actually addressing its merits, he will just denounce that approach as overly "formal." It's shocking how often academics will consider hard grappling with legal principles an excessively "formal" exercise. I wish L & M put more thought into their rejoinder to M & R's 9 out of 13 argument rather than just offering a conclusory statement that dismisses it.

My own view is that the Constitution, as enacted, was a piece of crap (e.g. allowing slavery, no voting rights for women), and I have no illusions about trying to make the document the "best it can be," or arguing over which approach best preserves its majesty. Originalism may be worse (as a practical matter) than the living constitutionalism. Perhaps it's better. It's hard to tell -- but I think the former approach is the legitimate one, and thus favor it.

Posted by: andy | Oct 16, 2007 6:21:36 PM

Andy: Go ahead and read it -- along with the replies -- and tell us what you actually think of the merits. And, in case it wasn't obvious, my agreement with their critiques is a judgment independent of whether I think they wrote a good paper. I certainly agree with many people who express their arguments quite badly in bad papers -- and disagree with many people who write wonderful papers.

Mr/s Racism: I'm not sure what your point is -- since M & R concede in their original paper that blacks and women were excluded quite generally from participation in the ratification. Telling us that some free blacks voted to ratify is a bit like telling us that some of the men that voted to ratify were actually biological females. Sort of interesting (if true) but basically irrelevant to the arguments.

Posted by: Ethan Leib | Oct 16, 2007 6:02:47 PM

"David Law (USD/UCSD) and David McGowan (USD) have put a few more nails in the coffin of McGinnis & Rappaport's recent effort to marry pragmatism and originalism in the Northwestern University Law Review's Colloquy . . . I agree with all of their arguments and think they did a wonderful job."

So the authors have thoroughly convinced someone who already agreed with them. I don't think I'll take M & R's article off my "To Read" list just yet.

Posted by: andy | Oct 16, 2007 5:51:28 PM


One of the arguments is simply wrong. The dissenters in Dred Scott pointed out that not only white males ratified the Constitution. In some states free blacks voted to ratify it as well.

Posted by: Ahistorical Racism | Oct 16, 2007 4:56:39 PM

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