Reviewed by Whitley Kaufman, Departments of Philosophy and Global Studies, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu
Law professors John McGinnis and Michael Rappoport provide what they claim is a “new normative defense of constitutional originalism” (p.2). It is an attempt to respond to the problem of establishing a justification for the originalist doctrine, “the view that the Constitution should be interpreted according to its original meaning” (p.1). They reject the notion that originalism simply follows from the concept of law or the idea of the rule of law, as other originalists have argued (p.4). What is needed, they think, is a moral and political defense of why originalism and only originalism can produce a just society: “our central argument for originalism is that it preserves the benefits of a desirable Constitution” (p.12). Throughout the book, the authors have the unfortunate tendency of lawyers to tell you what they’re going to say, then say it, then tell you what they have said. As a result, the writing can become repetitive. Nonetheless, this method at least promotes the virtue of clarity, a point on which the authors excel.
McGinnis and Rapport present two “basic claims”: first, that a good constitution “is one that promotes the welfare of the people and that such a constitution should be followed,” and second, that “passing a constitution through a strict supermajoritarian process provides the best method” for creating a good constitution (p.19). The argument, they insist, relies on minimal normative assumptions: “we merely assume that good consequences are produced by a constitution that incorporates the core principles of the liberal tradition and has the support of the people” (p.11). More controversially, they adopt the moral theory of “welfare consequentialism,” a version of utilitarianism, which holds simply that one should aim at producing the greatest welfare for the people. To be precise, they adopt a variant of consequentialism known as “rule-consequentialism,” the idea that the best way to maximize welfare is to “follow settled rules and practices” (p.24).
The essence of the argument, according to the authors, can be captured in three premises:
First, desirable constitutional provisions (or as we also call them, entrenched laws) should take priority over ordinary legislation because such entrenchments establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals. Second, appropriate supermajority rules are a sound method of producing legitimate and desirable entrenchments and no superior method is available. Third, the Constitution and its amendments [*53] have been passed in the main under appropriate supermajority rules, and thus the norms entrenched in the Constitution tend to be desirable.They conclude: “From these premises, it follows that the desirability of the Constitution requires that judges interpret the document based on its original meaning because the drafters used that meaning in deciding whether to adopt the Constitution” (p.11).
Much of the book is taken up with an attempt to defend the claim that “entrenchments” adopted by a supermajority (i.e. constitutions or their amendments) are necessary for a good society, as an alternative to a pure democracy where all decisions are made by a present majority. They argue that a supermajority rule for entrenchments makes it impossible for one party to pass a rule without the help of the other, and so will promote “a greater spirit of bipartisanship” (p.53). This will also result in more “accurate” judgments about which rules will be in the long-term interest of the country. The supermajority requirement also creates a “beneficial veil of ignorance”: since these rules cannot easily be repealed, there is less incentive to pursue short-term partisan advantage, since one cannot predict one’s situation far into the future (p.54). Further, given that most proposed entrenchments are likely to be bad ones, another advantage of the supermajority requirement is that it will block most proposed changes (p.55). In sum, “strict supermajority rules are very likely to generate a good constitution” (p.33).
McGinnis and Rapport argue that the supermajoritarian requirement is responsible for making the U.S. Constitution so good: the “supermajoritarian provisions were not only desirable in the abstract but were also responsible for key provisions of our Constitution that have been admired throughout the world,” including the Bill of Rights, which they argue would not have been added if only a majority approval had been required. The “greatness of the Constitution” is “largely the result of the supermajoritarian process that enacted it,” they tell us (p.64).
The authors acknowledge the frequent criticism of the Constitution that its supermajority rules, particularly those for amending the Constitution, are too stringent. To the contrary, they argue, while they are very strict, the amendment process is “within the range of stringency that is desirable, even if it is at the most stringent edge of that range” (p.66). They support this claim by analyzing amendments that came close to passing, concluding that most of them were either unnecessary or positively harmful (p.67). By contrast, they point out, there have been numerous amendments making substantial changes to our political system – notably, the Reconstruction Amendments and the Women’s Suffrage amendment, remedying the two great failures of the original Constitution in providing equal representation. These changes indicate that the amendment process is not too strict to prevent major amendments (p.69). They admit that the Constitution is in fact too stringent in certain respects, notably the idea of the equal representation of all states (p.75). But despite some defects, they think that the amendment process does “provide a reasonably beneficial supermajoritarian [*54] process for entrenchment” (p.76). Hence the central thesis of the book, that “appropriate supermajority rules result in a good constitution” (p.61).
McGinnis and Rappaport’s adoption of welfare consequentialism is problematic. They note that it is a “controversial” theory (p.24), though they do not seem aware that the large majority of moral philosophers have rejected the theory as untenable. Moreover, they adopt a particularly problematic form of the consequentialist theory known as “rule consequentialism” which holds that one ought to “follow settled rules and practices” that have proved reliable, rather than evaluate every single action by cost-benefit analysis (p.24). Even among consequentialists, rule-consequentialism is widely rejected. It is not however clear whether these assumptions are crucial to their argument, which is the quite simple one that supermajority rule leads to a better society than mere majority rule.
Somewhat more problematic is the way McGinnis and Rappaport handle the crucial normative question: what constitutes a “better” society or a “good” constitution? Without an answer to that question, we cannot evaluate whether the supermajority rule is a good idea or not. Here the argument gets a good bit shakier. The authors, understandably, want to avoid having to develop a detailed substantive conception of the good society. To avoid this, they tell us that “we merely assume that good consequences are produced by a constitution that incorporates the core principles of the liberal tradition and has the support of the people” (p.11). What these core principles are remains rather vague, though they refer in various places to such things as the separation of powers, bicameralism, and the protection of minority rights (e.g. p.58). In the end, they more or less assume that our constitution is a good one, citing current consensus (p.64).
McGinnis and Rappaport’s inability to articulate just what constitutes a good constitution creates problems for their argument, for their claim to apply “cost-benefit analysis” on this question presupposes a far more precise set of standards than they provide. And on top of that, to ask whether the U.S. would have been as well off with a looser amendment process (or even a majoritarian process) is to require analysis of historical counterfactuals, always a problematic exercise. Moreover, it requires that they judge which failed amendments were really “bad” ones and which “good,” again requiring moral judgments which their lack of a clear political theory seems to preclude. And on top of that, the claim that a supermajority will produce such good outcomes is at best a contingent one. It is perhaps for this reason that the conclusions of the book are so heavily qualified: consider the qualifications on just one page of the book, page 89: “is likely”, “will likely”, “not likely”, “much less likely”, “unlikely to be”, “might have failed”, “might not translate”, “may differ”, “might differ”, “would likely have been”, “would often create.” Indeed, their favorite word seems to be “likely,” which is used some 120 times in this book, including in their basic argument that a constitution enacted by supermajority rules is “likely” to be a good one (e.g. p.19). But what exactly does “likely” mean: 51% probability? 2/3 probability? (Elsewhere the authors sometimes say [*55] “very likely” or “highly likely”, which does not help to clarify their claim).
McGinnis and Rappaport also rely on game theory to defend their conclusion that supermajority entrenchment is a good idea. Chapter 3 is devoted to the Condorcet Jury Theorem for modeling group decisionmaking behavior, as adapted to group judgments about the good or bad effects of a given law or amendment. They argue that this model supports their conclusion, and “predicts that entrenchments passed under appropriate supermajority rules will be good ones” (p.60). As with the historical argument, there is good reason to be skeptical of this conclusion, given the highly artificial and simplified formal model of democratic decisionmaking, and the vagueness of the ideas of “appropriate” and “good.” How exactly does one decide, let alone quantify, what counts as a “good” law? How for example would one go about deciding on neutral, objective grounds whether the 2nd Amendment is “good”?
Given all these concerns, the authors seem to be rather more confident in their conclusions than the evidence warrants – for instance in declaring that a supermajoritarian constitution is “clearly superior” to a society run simply by majority rule, the latter being likely to undermine “stability” and “social peace” (p.58). One might have liked to hear a little discussion of England, a country without a written constitution and yet one that has managed to avoid the parade of horribles they predict. And as recent political developments have shown (e.g. the abuse of the filibuster rule in the Senate), supermajority rules are as likely to lead to gridlock as to good laws. Societies are far too complex for there to be any simple rules of this sort about how to produce such things as social peace and stability.
But suppose for purposes of argument we grant the authors’ conclusion that our system has produced a good constitution. The real problem in this book is the final step of their argument. Even supposing it is true that a supermajoritarian constitution is good, does it follow that the originalist theory of constitutional interpretation is correct? The fallacy here, found so often among originalists, is to confuse constitutionalism with originalism. Anyone, on this view, who rejects originalism must be rejecting the Constitution. But this is unfair and inaccurate. While there are perhaps some nonoriginalists who take the view that one may disregard the Constitution when convenient, this is by no means the mainstream view. Most scholars who reject originalism as an implausible theory are not claiming that one can ignore the Constitution and substitute one’s own values; rather, the disagreement with originalism is about how best to interpret the Constitution faithfully.
McGinnis and Rappaport seem to be in the grip of a Manichean view, a world divided into the forces of good (originalists) versus the forces of evil (nonoriginalists). Nonoriginalists, they claim, are not playing by the rules (p.94) and their doctrine “undermines the objectivity of law” (p.204). It is a form of “rebellion” (p.65) and reflects an “elite bias” (p.152). Nonoriginalism is a “tragedy” (p.207) and a “romantic delusion” (p.131). If the motto of originalists is “We the People,” the motto of nonoriginalists is “We the Elite Lawyers” (p.206). Nonoriginalism [*56] undermines the “rule of law” itself (p.87). Moreover, nonoriginalism is, they insist, a fundamentally “dishonest” legal philosophy, given that it cannot publicly admit that it is “rewriting” the Constitution, so that “dishonesty” and “obfuscation” become necessary (p.87).
The authors also seem to want to blame all of the evils of the world on nonoriginalism. Not only does it undermine the rule of law and prevent open debate on Constitutional questions (p.87), it derails the Constitutional amendment process as well by substituting judicial rewriting for amendments (pp.88-89). And when an amendment fails to pass, that may be due to nonoriginalism as well, as in the case of the ERA – which, they tell us, failed to pass because of “judicial activism”, based on which “citizens could not be confident that the Court would have interpreted the amendment’s general language according to the meaning its enactors claimed to attach to it”, fearing that nonoriginalist judges would use it to “mandate same-sex bathrooms” (p.93) (they however provide no evidence for this remarkable claim). Astonishingly, McGinnis and Rappaport even blame Jim Crow laws on nonoriginalism (p.109), as if Bull Connor and George Wallace were devotees of Living Constitutionalism. The naïve reader might have thought that Jim Crow was a product of a legacy of slavery, racism, and oppression of African-Americans, but the authors reason that Jim Crow was an example of defiance of the Constitution and the rule of law, and thus should be categorized as a form of nonoriginalism! The lumping together of nonoriginalists with all those who defy the law is bad enough, but the authors don’t even get their history straight. In fact, those resisting desegregation did so in the language not of nonoriginalism but of originalism: the famous “Southern Manifesto” of 1956 declared that “The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States."
In contrast, of course, McGinnis and Rappaport portray originalist judges as having all of the virtues: humility, restraint, honesty, diligence, responsibility to the people and to democracy. The authors congratulate their judicial philosophy as a “great achievement”, a “correspondence of elegance and beauty that helps sustain the Republic” (p.207). But nowhere in this book is there a serious attempt to engage with the nonoriginalist or Living Constitutionalist theory. The leading nonoriginalist theorists, such as Jack Balkin, are barely mentioned and quickly dismissed as being “elitist.” There are whole chapters in this book which engage with other originalist scholars, but not a chapter devoted to nonoriginalism, or even a serious attempt to present the Living Originalist theory in the words of its advocates. Nor does this book ever mention the many powerful criticisms raised against originalism – for instance, the charge that the purported method is essentially indeterminate, does not constrain judges, and usually ends up being a cover for their underlying ideological preferences (as in the Affordable Care Act case, where Roberts in interpreting the Commerce Clause found in it something resembling the ideology of Ayn Rand). [*57] Nor would the reader know from this book that some of the most infamous Supreme Court decisions have been originalist: DRED SCOTT V. SANDFORD (interpreting the Constitution according to the “true intent and meaning when it was adopted”), PLESSY V. FERGUSON (enforcing the “true intent and meaning” of the Constitution), LOCHNER V. NEW YORK (looking to the “original purpose” of the 14th Amendment).
The book ends with McGinnis and Rappaport boldly predicting a new “golden age” of jurisprudence in which all judges and lawyers become originalists (p.198) and in which, apparently, peace and harmony will reign once again as the Constitution is restored to its rightful role. They insist that this “is not simply a dream” (p.200), in contrast to the “romantic delusion” of the nonoriginalists. This sort of polarized, partisan approach is unfortunate. There is no doubt that nonoriginalism (like any judicial philosophy) is occasionally subject to abuse, and that some Constitutional cases were wrongly decided in that they clearly departed from the intent of the framers. But the Living Constitutionalist theory is a sophisticated and complex alternative to the originalist theory of how best to interpret the Constitution. One would have liked to hear some reply to Jack Balkin’s argument that Living Constitutionalism is in fact a form of originalism, but a more plausible one. Instead, these authors have chosen to resort to hyperbole and caricature. For them, nonoriginalism is by its very nature an abuse of the Constitution, a doctrine without any merit whatever. This is really too bad because there really is a genuine debate to be had on these issues.
LOCHNER V. NEW YORK, 198 U.S. 45 (1905).
PLESSY V. FERGUSON, 163 U.S. 537 (1896).
SCOTT V. SANDFORD, 60 U.S. 393 (1857).
Copyright 2014 by the Author, Whitley Kaufman.