Originalism and the Good Constitution.

Author:Bloom, Frederic
Position::Book review
 
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ORIGINALISM AND THE GOOD CONSTITUTION. By John O. McGinnis and Michael B. Rappaport. Cambridge and London: Harvard University Press. 2013. P. 207. $39.95.

INTRODUCTION

Our Constitution can change. We can amend it, update it, improve it. And so we have--twenty-seven times by one count, many more by another. Everyone recognizes this.

But fewer people appreciate that the mechanics of constitutional change can change as well. A method of alteration unaddressed at the founding can grow into established practice. A procedure built into constitutional text can slip into disuse. As much as citizens can change the substance of the Constitution, they can also change the ways they change it.

In Originalism and the Good Constitution, John McGinnis (1) and Michael Rappaport (2) make an elegant and provocative case for one method of constitutional change. They argue that the Constitution should change, if at all, only through the formal, supermajoritarian processes expressly outlined in the Constitution's Article V. And they believe it follows that we should all be originalists too.

There is much to admire about McGinnis and Rappaport's project. It is crisply written and carefully argued. Yet it raises some puzzling questions as well: Would their proposal itself constitute a kind of constitutional change? And, if so, can their effort succeed only through a process they seem to reject? McGinnis and Rappaport present Article V as more than good practice. They present it as the exclusive mode of legitimate constitutional alteration. But constitutional change has never come by way of Article V alone. It has come through a diverse array of political, cultural, and legal mechanisms: social movements, electoral fights, media debates, legislative overhauls, and much else--including academic argument. So we wonder: Would relying exclusively on Article V itself be a constitutional change--and, if so, would that put McGinnis and Rappaport's proposal at odds with their own preferred process? (3)

In this Review, we examine the complex facets of these questions. We also use Originalism and the Good Constitution as an occasion to ask critical questions about how the Constitution actually evolves and where supermajoritarianism truly fits in that evolution. We begin, in Part I, by outlining the relevant constitutional debate. We locate McGinnis and Rappaport's book in its broader intellectual context, linking it to a recent migration among conservative constitutional theorists toward a kind of supermajoritarianism--and perhaps toward a kind of "law-ish" formalism. (4) We distinguish McGinnis and Rappaport from those progressive constitutional thinkers who have turned another way--toward simple majoritarianism, or toward less formal modes of amendment outside of Article V. And we discuss McGinnis and Rappaport's particular brand of supermajoritarianism, detailing two of their argument's most pressing difficulties--its elision of important problems with elevated voting thresholds and the quiet but crucial way it gives up its own game.

In Part II, we expand the analytical frame. We consider why attention to supermajoritarianism is intensifying now and why it may appeal to particular scholars. We then argue for a different, more inclusive understanding of democratic change, both constitutional and otherwise--an understanding that includes a whole panoply of institutional, social, and political dynamics: formal rules and informal ones, voting requirements and nonvoting mechanisms, supermajority thresholds and social movements, legislatures and courts. Our claim, to be clear, is not that supermajoritarianism has no place in contemporary constitutional law or politics. Our claim is that real change occurs through formal supermajoritarianism and fleeting majoritarianism, through popular constitutionalism and amendment outside the law. It occurs, as it should, through a kind of multifarious "all of the above."

  1. THE DEBATE

    Originalism has a rich pedigree. The term first grew popular in the 1980s, promoted by (among others) Attorney General Edwin Meese. (5) But the concept reaches back much further--to the academic writings of Robert Bork, (6) William Rehnquist, (7) and Raoul Berger, (8) and to the judicial opinions (perhaps) of Justice George Sutherland. (9) Since then originalism has spread, splintered, and evolved, adding once-unlikely adherents and dividing on sometimes-subtle grounds. (10) In fact, the term may have grown so large and so disparate as to include both everything and nothing: it is now possible to claim that everyone is an originalist (11) and that no one is. (12)

    Yet by any measure John McGinnis and Michael Rappaport rank among our most devoted originalists. They are also among the most distinctive. Like Justice Scalia, they believe that originalism can be defended "on the basis of [its] consequences"--but they ask whether legal rules are good, not merely whether they are clear (p. 7). And like Professor Whittington, they aim to maintain "fidelity to the authoritative decision[s] of the people"--but they depend on supermajoritarian procedure, not on simple popular sovereignty (p. 7). But if McGinnis and Rappaport are in some ways unusual, they are not iconoclasts. Key components of their argument--the turn to supermajoritarianism, the embrace of formalism--pick up trends increasingly prominent among conservative constitutionalists today. Below, Section I.A sketches those trends in general, setting McGinnis and Rappaport's book in its broader academic context. This Section also examines McGinnis and Rappaporf s particular location in the debate and describes their principal thesis. Section I.B then details two of their proposal's most pressing problems.

    1. The Right

      Supermajority rules date back to the juries of ancient Rome. (13) Back then, these rules were seen not as a response to the supposed excesses of pure majoritarianism but as "an alternative to the unyielding demands of unanimity." (14) In the United States, supermajority rules were first used for that reason too: they were seen, to start, as an alternative to the unworkable mandates of the Articles of Confederation, a charter that required unanimous consent among the states for any change. (15) The Constitution thus provided that it could become law with the assent of nine of the first thirteen states. (16) Thereafter, Article V required (and still requires) "two thirds of both Houses" to propose an amendment or "two thirds of the several States" to call a "Convention"--and then "three fourths of the several States, or [their] Conventions," to ratify any change. (17)

      It is easy to see the allure. Supermajority rules promise a voting threshold that demands neither too little nor too much--both for constitutional change and for ordinary legislation. Simple majority thresholds, on one side, might make politics too fickle--substantively unstable, incapable of building consensus, and insensitive to minorities. (18) Unanimity rules, on the other, might make politics impossible--stifled by holdout voters who seek private gain instead of public good. But supermajority rules could address both problems, leaving some (but not too much) space for actual governance, providing a dose of political stability, ensuring significant consensus, and protecting minorities too. (19)

      In recent years, this supermajoritarian promise has found a new and devoted group of promoters. Conservative constitutional theorists in particular have stepped up their defense of the idea, especially with regard to constitutional change, arguing that such change should be procedurally exacting and numerically well supported. Professor Barnett, for one, advances a "Bill of Federalism," proposing the adoption of ten new constitutional amendments--including one that mandates both originalism and strict adherence to Article V's formal supermajoritarianism. (20) Professor Calabresi, for his part, advocates a new supermajoritarian override of the Supreme Court, one that would permit Congress to overturn Court decisions by a two-thirds vote. (21) Mark Levin, Meese's former chief of staff, argues that three-fifths of the states should be able to "override" any federal legislation. (22) And Senator Hatch has lauded the Senate's awkward but attention-grabbing supermajoritarian check: "If you didn't have the Senate, then the large states would control everything.... You would not have any real representation of the people who are basically in the middle of the country." (23)

      For some, this move to supermajoritarianism has been paired with a distinctly formalist impulse. The impetus here is not simply a two-thirds or three-quarters threshold, wherever one might find it. The impetus is a strict, perhaps even rigid conception of the procedural means by which that particular level of support is determined and any subsequent legal change is brought into effect. Barnett, again, demands amendment only through Article V's particular procedures. (24) Justice Scalia endorses that same exclusive approach (p. 176), even as he worries that Article V's procedures are now too "hard." (25) To them, supermajoritarianism is not just about ensuring a high level of support for any constitutional change. It is about enforcing a voting rule--a process that requires voting itself and is designed to produce clear textual alterations in the document. This kind of formalism reflects a commitment to particular procedures embedded in rule-of-law values. It displays a devotion to established structures of representative government, even in the face of contrary popular will. And it is crucial to some strands of contemporary originalism--perhaps even more crucial than the concern for popular support.

      McGinnis and Rappaport share the view that the Constitution should change only by way of Article V. (26) They argue that ours is "a supermajoritarian constitution" (p. 2), conceived and created by more than majoritarian means. But they are...

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