A pragmatic defense of originalism.

• Author: McGinnis, John O.

Originalism and pragmatism are uneasy companions. This Essay will attempt to make them friends. The usual view is that pragmatic interpretation has the essential virtue of ensuring that the consequences of legal decisions will be good. (1) Originalism, in contrast, is thought to focus on fidelity to the past and therefore to permit the Court to reach undesirable, outdated results. (2) This Essay argues that originalism, although it does require judges to focus on the past, actually produces desirable rules today and, further, that originalism is the genuinely pragmatic way to interpret the Constitution.

Originalists largely have failed to meet pragmatic objections. The argument that judges should be originalists simply because that is what the Framers intended is not only circular, but fails to offer any assurance that good consequences attend originalism. The argument that originalism advances democracy seems weak and undeveloped, because originalism sometimes requires judges to strike down a result of the democratic process when statutes or executive actions conflict with the original meaning of the Constitution. (3) Finally, although the argument that originalism offers clearer rules to constrain judges than other interpretive approaches contains some truth, that alone is not enough to sustain the case for originalism. (4) The benefits of judicial constraint are limited if judicial decisions, despite their non-discretionary nature, still impose substantial harms. Conversely, if constraint is the overriding objective, non-originalist doctrine may sometimes provide more constrained rules than the original meaning. (5)

Pragmatic interpretation--which is usually thought to involve judges deciding particular cases based on their policy consequences--faces severe problems as an approach to resolving cases. People disagree about whether the consequences of particular decisions are good or bad. If the Constitution is to provide a framework for governance, it cannot simply replicate these disagreements. (6) Or, to put the objection to pragmatic constitutionalism in pragmatic terms, if a constitution is to have an independent settlement function in our polity--one that promotes the important ends of political stability, liberty, and prosperity--it cannot depend on judges deciding the same issues that are endlessly politically disputed. Moreover, judges seem a curious group to interpret the Constitution if consequences are key. As well-respected as its members may be, the Supreme Court is still a small and insulated group of legal experts who lack the institutional capacity or electoral accountability for evaluating policy consequences. (7)

Originalism can be given a strong pragmatic justification by focusing on the process by which constitutional provisions are created. Provisions created through the strict procedures of constitutional lawmaking are likely to have good consequences. Sustaining these good consequences, however, depends on adhering to the Constitution's meaning when it was ratified. Justified in this manner, originalism allows judges to achieve good consequences through formal legal interpretation without making policy case by case. In a paper of this brevity, we cannot provide exhaustive support for this position, but this Essay will sketch the main elements of a pragmatic defense of originalism. Because such defenses of originalism have been neglected, this Essay strives to encourage a broader debate about the consequences of originalism and other interpretative methodologies.

1. SUPERMAJORITY RULES AND DESIRABLE CONSTITUTIONAL PROVISIONS

   This Essay's pragmatic argument for originalism can be briefly summarized. First, desirable, entrenched laws should take priority over ordinary legislation because such entrenchments operate to establish a structure of government that preserves democratic decision-making, individual rights, and other beneficial goals. Second, appropriate supermajority rules tend to produce desirable entrenchments. Third, the Constitution and its amendments have been passed primarily under appropriate supermajority rules; therefore, the norms entrenched in the Constitution tend to be desirable. Although there is one significant way in which those supermajority rules were not appropriate--the exclusion of African Americans and women from participating in the selection of constitutional drafters and ratifiers--this defect, addressed below, has rightly been removed. (8) 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. In short, it is the supermajoritarian genesis of the Constitution that explains both why the Constitution is desirable and why that desirability depends on its original meaning.

   The structure of this defense of originalism merits description. It defends the quality of constitutional provisions by reference to the likely consequences flowing from the process that created them. It avoids the Scylla of completely formal defenses of originalism and the Charybdis of completely contestable assertions of what constitutes goodness. The structure is also consistent with perhaps the most common defense of originalism: that it generally ties judges to rules. (9) These rules consist of the interpretative rule of originalism itself as well as the substantive rules in the Constitution. (10) But to the virtue of rule-following, it adds the even more important virtue of following beneficial rules.

   The essence of our argument is that the strict supermajoritarian rules that governed the Constitution's enactment make it socially desirable. If the Constitution were simply enacted by majority rule, like statutes, there would be no strong reason to privilege provisions that happen to be in a document called "the Constitution." (11) The supermajority rules of the Constitution's enactment, however, make them good enough to enforce when they conflict with mere majoritarian enactments. (12)

   Entrenchment of norms offers significant potential benefits. (13) It establishes a framework for government and sets out ground rules that protect against predictable dangers of ordinary democratic governance. Entrenchments, however, last long into the future, and bad entrenchments are at least as harmful as good entrenchments are beneficial. Although majority rule generally is thought to produce desirable, ordinary legislation, permitting a majority to entrench norms would be problematic because majorities have a tendency to pass undesirable entrenchments for a variety of reasons. (14) By contrast, the passage of entrenchments under supermajority rules compensates for these tendencies and produces, on average, good entrenchments. This Essay briefly explains a few of the reasons for the superiority and the desirability of supermajoritarian entrenchment.

   First, because entrenched norms cannot easily be eliminated, controversial entrenchments can be extremely divisive. Majorities, even narrow ones, tend to pass such entrenchments if they believe that these norms will make for good entrenchments. Moreover, even if a majority recognizes that entrenchments should have consensus support, it might still be reluctant to refrain from entrenching controversial norms for fear that a future majority will entrench its preferred norms despite the lack of a consensus. (15) If a majority enacts controversial entrenchments, minorities may strongly oppose them and may be furious that bad norms, which cannot be repealed by the ordinary democratic process, will govern the nation. The minorities' alienation will lessen their allegiance to the Constitution and the regime.

   Supermajority rules, however, address this problem by permitting only the entrenchment of norms with substantial consensus. (16) A broad consensus for the Constitution creates legitimacy, allegiance, and even affection as citizens come to regard the entrenched norms as part of their common bond. (17) Such a Constitution helps individuals transcend their differences, such as ethnicity or geography, and makes them citizens of a single nation.

   Second, majorities in a party system tend to be partisan. Because of partisanship, majorities will tend to abuse their power for at least two reasons. First, partisanship may lead majorities to adopt a non-rational "us versus them" attitude that will focus their attention away from the merits of legislation. More rationally, majorities may decide to entrench legislation that they do not really believe should be entrenched, if only to foreclose legislation that they fear the opposing party will entrench when it comes to power. (18) For instance, legislators from one party might decide to entrench low taxes and low debt to prevent the other party from entrenching entitlements, even if both parties believe the nation would be better off without entrenching either program. Supermajority rules can also decrease the ill effects of partisanship by making it less likely that entrenchments can be passed with the support of only one party. If the two parties must cooperate to pass legislation, they are less likely to indulge in "us versus them" attitudes. (19) Moreover, supermajority rules will prevent the destructive competition by which one party races to entrench its political program before the other party entrenches its own program.

   Third, the long-term nature of entrenchments makes it less likely that legislative majorities will enact desirable entrenchments. Individuals have a heuristic problem in thinking about the future: they are too disposed to believe that current trends will continue. (20) Similarly, majorities may be prone to support constitutional provisions out of the mistaken belief that present circumstances will continue in the future. In addition, citizens cannot easily hold legislators accountable for their...