A while back I did a bunch of posts on the relationship between positivism and originalism. At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it. I am finally doing the post.
Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification. Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it. One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice. But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds. The overall best interpretation would be based on both fit and justification.
Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed. This type of originalism is both attractive normatively and does a reasonable job of fitting the practice.
Earlier this week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution. The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center. You can watch the video here. Roger took issue with our book from a natural rights perspective. He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy. But I believe that Roger is mistaken. …
Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.
Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people.
John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation. See here and here. It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.
In the essay, we write:
Reviving a comprehensive originalism would greatly 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 which 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 if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.
Over at his blog, Tim Sandefur asks some questions about my new book with John McGinnis, Originalism and the Good Constitution. While I can’t answer all of his questions in a single post, let me address his first two basic points. Start with his first point:
What, then, do we do about existing precedent that diverges from the original meaning? A die hard Originalist might say, Jettison this precedent. But Rappaport and McGinnis don’t. They argue that where precedent diverges from the original meaning, we should continue to follow such precedent if overruling it would impose “enormous costs,” and where the existing precedent is “entrenched,” meaning that a strong consensus supports that precedent today.
My question is this: this escape hatch from the apparent requirements of Originalism is not based on anything intrinsic to the Originalist commitment. It’s ordinary cost-benefit analysis, and notably contemporary in its focus. What connection is there between the Originalist notion of fidelity to the original language, and this apparent permission to escape from that commitment?
In our view, the original meaning of the Constitution allows precedent. It does not, for the most part, specify what that precedent is. Instead, it treats precedent rules as a matter of common law that is revisable by congressional statute. Since precedent rules can be enacted by statute, we discuss what we believe would be the best precedent rules based on our preferred normative approach – welfare consequentialism (a form of utilitarianism). We do not justify this precedent approach based on the Framers’ values, but there is no need to do so. Ordinary legislation today does not have to follow the Framers’ view about what is good legislation (so long as it is constitutional). Similarly, precedent rules do not have to follow the Framers’ view about precedent.
I wanted to remind readers of this past month's Liberty Forum on the new book by John McGinnis and me, Originalism and the Good Constitution. The first essay by McGinnis and me set forth the basic claims of the book. Richard Epstein then wrote a critique here. Unfortunately, Epstein misunderstood our argument -- assuming that we believe supermajority enactment rules always lead to good results, even if a class of voters, such as blacks, is excluded from the electorate. But as we stated in our original essay and pointed out in our response here, our argument is that only appropriate supermajority enactment rules…
In response to: Originalism and The Good Constitution: A Discussion
John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press. What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because it connects directly to the concept of a good constitution and because its advances the welfare of present day citizens. It does so, they argue, by generating constitutional interpretations that have better consequences than non-originalist theories. We typically think that non-originalists such as Stephen Breyer…
In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…
We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real…
We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of…
(This post is written jointly by John McGinnis and Mike Rappaport)
Ed Whelan has read our book and is kind enough to describe it as “an impressive work, rich with interesting and intelligent arguments.” And he writes, “Their book will surely play a prominent role in the ongoing debate over originalism.”
Ed does, however, offer some criticisms in his two posts on our book. In this and the next post, we will respond to some of his arguments.
First, Ed questions whether our consequentialist defense of originalism – as involving a good Constitution that should be enforced – is really the best normative defense of originalism. He first notes that we reject the notion that following the law is the best defense of originalism. He then states:
To state my point more affirmatively: I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution. . . . Even in the collapsing state of our culture, the proposition that it’s generally wrong to lie seems to me to retain broad appeal.
We are not exactly sure what Ed is proposing as the best normative defense of originalism. On the one hand, he might be arguing that we should follow the original meaning, because it is the law. If that is his argument, then we would point to Mike Rappaport’s earlier post rejecting this argument. In particular,
another problem with the argument that the original meaning of the Constitution is the law that it is not clear that it is true. What does it mean to say that the Constitution’s original meaning is the law? Certainly, people are in jail in the U.S. – lots of them – for violating laws that are inconsistent with the Constitution’s original meaning. More generally, nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.
But perhaps Ed means something else – perhaps he is basing his argument simply on the obligation not to lie. We have a couple of concerns about this.
Over at the Volokh Conspiracy, Ilya Somin has a very generous review of the new book by John McGinnis and me. Here is an excerpt: This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by…