By David S. Law[*] and David McGowan[**]

[download pdf]

[Editor's Note:  We are proud to present this Colloquy Essay in two installments.  Parts I and II are published here, and Parts III and IV are published here.]

John McGinnis and Michael Rappaport propose that originalist constitutional adjudication produces better consequences than competing approaches.  They say they have "sketch[ed] the main elements of a pragmatic defense of originalism."[1]  We disagree.  Pragmatism is about how well things work in practice, not how they should work in theory.[2]  McGinnis and Rappaport's argument turns pragmatism on its head:  it rests not on any evidence of originalism's actual superiority to other approaches, but rather on theoretical claims about the supermajoritarian character of originalism and the merits of supermajoritarian policymaking.

Part I of this essay explains why originalist judging does not honor the results of what McGinnis and Rappaport would consider "appropriate" supermajoritarian decisionmaking.  Part II demonstrates that supermajority rules do not necessarily lead to the adoption of beneficial policies.  We show that the actual effect of such rules depends upon a host of additional factors that cannot be analyzed in the abstract.  In Part III, we review the ways in which McGinnis and Rappaport understate or ignore the costs of originalism, relative to those of other approaches.  Finally, in Part IV, we present evidence that non-originalist judicial decisionmaking has, in fact, done a good job of enhancing social welfare, as measured by popular approval of the Court’s decisions.

By John O. McGinnis[*] and Michael B. Rappaport[**]

[download pdf]

[Editor's Note:  This piece is a reply to Leib, Why Supermajoritarianism Does Not Illuminate the Debate Between Originalists and Non-originalists, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 113 (link).  Leib's piece was a response to McGinnis and Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007) (link).]

Introduction

Despite their ubiquity in the law, supermajority rules are little discussed and hugely undertheorized.[1]  We are thus grateful to Professor Leib's response to our essay,[2] because it allows us to expand on the subject.  But if Professor Leib, who has written interestingly on supermajority rules in the context of the jury, is as mistaken on some fundamental points in our argument as his reply suggests, we must become better evangelists for our favorite topic.

This brief reply responds to Leib's criticisms of our essay.  We show that, among other things, Leib fails to appreciate what makes our argument for originalism new; that he misunderstands the nature of supermajority rules in a complex voting system; and that he does not recognize the differences between constitutional provisions enacted under genuine supermajority requirements and ordinary statutes that happen to receive the support of a supermajority of legislators.

We are also grateful for the opportunity to reiterate that our essay did not purport to offer a comprehensive new defense of originalism, but instead only the outlines of a theory.  Professor Leib criticizes us at several points for not developing an argument or answering some possible criticism, but full development and anticipation of even the most important criticisms are not possible in a fifteen page essay.  The advantage of the short essay form now becoming more popular in the academy is that it allows one to provide the essence of a new idea, leaving some issues to later development and eschewing discussion of issues that have been thoroughly debated elsewhere.  Happily, this reply allows us to develop some additional parts of our theory.  Here, then, we answer some of Leib's concerns, including explaining how much support is needed to establish the applicable interpretive rules, and discussing the effects of the status quo on the desirability of a constitution produced by supermajority rules.[3]

By Ethan J. Leib   

[Editor's Note:  This piece is a response to McGinnis and Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007) (link).]

Abstract

John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government.  But they now go too far.  In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism.  This most recent piece of their project simply does not work.

In this Essay, I dispute each of their substantive claims.  First, I argue that there is nothing newly pragmatic about their defense. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules.  And, finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime.  In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention.

It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.

Click Here to Download This Short Essay                  

----      

Copyright 2007 Northwestern University      

Cite As:  101 Nw. U. L. Rev.  (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 113 (2007), http://www.law.northwestern.edu/lawreview/Colloquy/2007/7/.

Persistent URL:  http://www.law.northwestern.edu/lawreview/colloquy/2007/7/      

(Download PDF)      

(Comments)      

(back to top)

By John O. McGinnis & Michael B. Rappaport

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 because of 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.

Click Here to Download This Short Essay

Copyright 2007 Northwestern University

Cite As: 101 Nw. U. L. Rev.  (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/1/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2007/1/

(Comments)