Originalism and the Good Constitution.

• Author: Lash, Kurt T.
• Position: Book review

ORIGINALISM AND THE GOOD CONSTITUTION. By John O. McGinnis (1) & Michael B. Rappaport. (2) Cambridge, Mass.: Harvard University Press. 2013. Pp. 298, $39.95 (cloth).

Originalism is a reformist movement in contemporary American constitutional law. Its practitioners reject modern interpretive theories such as "living constitutionalism" and call for the restoration of the foundational understanding of the text. Despite vigorous efforts to discredit the movement, (4) originalism in the twenty-first century enjoys an increasing number of scholarly advocates (5) and it occupies an essential place in the toolbox of advocates before American courts. (6) But success has its costs. As the number of self-identified originalists increase, so do disputes regarding the proper normative basis for originalism and the degree to which original understanding ought to control the resolution of contemporary legal disputes.

In their book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport offer both a new justification for originalism and what they believe is a purer form of the theory, "original methods originalism." Advocating a "pragmatic" justification for originalism based on the benefits of supermajoritarian decision-making, McGinnis and Rappaport insist that judges must apply the text exclusively through the use of interpretive methods in play at the time of the Founding. When judges depart from these "original methods," they (and we) lose the benefits of supermajoritarian decision-making. This is a creative and provocative approach to originalism that deserves serious attention by anyone interested in the expanding corpus of originalist theory. Even if not successful in their effort to displace what they call "constructionist originalism" (p. 8), McGinnis and Rappaport have established methodist originalism (7) as an important denomination in the originalist Reformation.

SUPERMAJORITARIANISM AND THE "GOOD CONSTITUTION"

Critics of originalism commonly maintain that a robust application of the theory would leave us with a government simultaneously underpowered and over-tyrannical. Originalist courts would invalidate the post-New Deal administrative state, overrule the equality jurisprudence initiated by Brown v. Board of Education, and abandon much, if not most, of the individual rights protections of the Warren Court. Pollution would go unregulated, the poor unprotected, and the will of the people here-and-now ignored in favor of the preferences of eighteenth century slaveholding white males. In short, the consequences of undiluted originalism would be bad.

McGinnis and Rappaport argue that such criticism is not only wrong, it is theoretically obtuse. Good faith judicial enforcement of the original meaning of the Constitution would result in good consequences, at least most of the time. Had courts consistently applied an originalist methodology from the country's beginning, McGinnis and Rappaport argue, we would have avoided Jim Crow, Congress would have been granted enumerated power to regulate the national economy, and individuals would have an enumerated right to sexual equality (p. 90).

Lest the reader be misled, however, McGinnis and Rappaport do not believe that it is the substance of law that makes it "good." Instead, it is the consequentialist values of stability and legal predictability that flow from a supermajoritarian decisionmaking that makes law "good." (8) Supermajoritarian voting procedures ensure broad public acceptance of norms intended to remain in place for generations. Participants in such a process will likely take the long view and entrench basic protections for all citizens (including their descendants) and not just those who happen to be in power. (9) The likely result is a stable body of law that maximizes preference satisfaction among the voting citizenry. These "good" benefits will be enjoyed only if judges enforce the original textual meaning that triggered supermajoritarian support in the first place. Judges who apply non-originalist meanings and methods inevitably introduce instability and disagreement and, ultimately, place society in a worse position than would have been the case had relevant decision-makers followed and enforced the Constitution's original meaning.

Although McGinnis and Rappaport argue that the original Constitution emerged from what was primarily a supermajoritarian process (p. 62), (10) they also acknowledge supermajoritarian "failures" such as the original exclusion of blacks and women from the voting public (p. 100). These original deficiencies, however, were largely remedied through the adoption of subsequent amendments, such as the Thirteenth, Fourteenth and Fifteenth Amendments. (11) It was the federal government's failure to properly enforce these amendments that blocked the immediate good results that would have otherwise flowed from the adoption of the remedial Reconstruction Amendments (p. 110).

In support of this claim, the authors rely on a number of disputed assertions about the original meaning of the Fourteenth Amendment. For example, McGinnis and Rappaport fault the Supreme Court in Plessy v. Ferguson for failing to recognize that the Privileges or Immunities Clause protected the equal, if unenumerated, rights of contract (p. 110). The Supreme Court's decision in Plessy to uphold racial segregation, of course, is not generally criticized because it failed to enforce fundamental economic rights. Nor is there anything approaching a scholarly consensus about the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. (12) On the other hand, the authors' central point is that scholars have been too quick to assume that originalist interpretations necessarily lead to morally unacceptable decisions like Plessy. This seems entirely correct. (13)

In fact, McGinnis and Rappaport do a great job explaining the pragmatic benefits of a supermajoritarian constitutional process. Originalists of all stripes would do well studying the opening chapters of The Good Constitution if only to better appreciate how the actual mechanics of American constitutionalism generate important contemporary societal benefits. True, as the authors concede, welfare consequentialism is a controversial normative theory. Nevertheless, they make a persuasive case regarding the rule of law benefits that attend supermajoritarian decision-making, regardless of one's ultimate normative justification for following the original meaning of constitutional text.

COUNTERING THE CONSTRUCTIONISTS

Given the ever-growing variety of scholars embracing the general theory of originalism, it was inevitable that schools of originalism would emerge with criticisms of fellow travelers who are perceived as straying from the true path. In the case of The Good Constitution, the authors spend a significant portion of the book contrasting their particular brand of originalism from what they label "constructionist originalism" (p. 139). Exemplified by the work of scholars like Randy Barnett and Jack Balkin (p. 151), (14) constructionist originalism distinguishes the discovery of constitutional meaning from the act of judicial application. (15) According to constructionists, since judges are not always able to fully determine the original meaning of a text or discern exactly how it ought to be applied to a particular legal dispute, they must often fill the gap between original meaning and current application by using a judicially constructed rule of interpretation. According to this approach, the less we know about original meaning, the more room exists for judges to fill the space with non-originalist judicial doctrine. (16)

To McGinnis and Rappaport, methods of interpretation derived by anything less that supermajoritarian decisionmaking threaten to undermine the good consequences otherwise generated by originalist methodology (p. 153). Not only is the approach problematic, to McGinnis and Rappaport it is wholly unnecessary: the same supermajoritarian process that produced constitutional text also produced a set of original methods for interpreting the text. As the authors put it:

The constitutional enactors voted to ratify the document based on their understanding of the text and how they believed it would be interpreted by subsequent generations. Thus, modern courts should interpret the Constitution using the same interpretive methods that the enactors would have used--a process we call original methods originalism (p. 153). To McGinnis and Rappaport, meaning and interpretive method are so closely entwined that you cannot discern the one without the other. "To embrace originalism without embracing the enactors' interpretive rules," they claim, "is like trying to decode a message using a different code than the authors of the message employed" (p. 14). This approach collapses the distinction between original textual meaning and judicial application, since the proper methods of interpretation and application are treated as part of the original "grammar" of the text. Methodism vanquishes constructionism by completely erasing the "construction zone" where non-originalist methodology might otherwise apply. This is originalism all the way down.

If all McGinnis and Rappaport were trying to do is suggest that the framers expected courts would apply some method of interpretation, this would seem obviously true. The historical record at the time of the Founding is full of references to various theories of textual and constitutional interpretation. The problem is, for McGinnis and Rappaport to succeed, they must prove the existence of supermajoritarian agreement on the interpretive method to be applied to each text of the Constitution. Anything less either fails the supermajoritarian requirement or leaves room for non-originalist construction. This is an enormous empirical burden and one that proves too great for McGinnis and Rappaport to carry. (17)

CONSTITUTIONS...