The Right Coast

June 22, 2005
The Normative Basis of Originalism
By Mike Rappaport

In arguing that the Downing Street Memo supports the impeachment of President Bush, Brian Leiter offers some criticisms of originalism that require a response. In essence, Brian contends that there are no good normative arguments for following the original meaning of the Constitution.

I must beg to differ. In the Texas Law Review, edited at Brian’s own school, John McGinnis and I have published an article that provides a normative defense of originalism. (Randy Barnett has also defended originalism in a complementary fashion in his recent book.) McGinnis and I root the normative basis for following the original meaning of the Constitution in the fact that constitutional provisions can only be enacted by passage under strict supermajority rules. (See Articles V and VII of the Constitution.)

Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. While the specific effects of supermajority rules depend on the type of laws being passed, the circumstances, and the model of the legislative process that one employs, one can make certain generalizations. First, that supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited. Second, the greater support required under supermajority rules also means that laws must in general produce significant public benefits in order to pass. (For other arguments, see the paper.) While supermajority rules don’t make sense in all circumstances, they are desirable when applied to the passage of constitutional norms that will be entrenched against change by ordinary legislative majorities.

The supermajoritarian process for enacting constitutional norms provides a reason why constitutional provisions should be preferred to ordinary statutes passed under majority voting rules: the constitutional norms are likely to be of higher quality than ordinary legislation. The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.

Both Brian and the paper he cites to by Andrei Marmor miss this argument. They contend that absent the people consenting to the Constitution which has not occured, there is no reason to treat its original meaning as authoritative unless the Framers had some “special expertise.” But it is not who the Framers were that justifies following their Constitution, it is the supermajoritarian process by which they enacted the Constitution. This process also justifies not following their handiwork when the Constitution has been amended.

This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

In the end, then, originalism is justified because it enforces provisions enacted in a process that suggests they will be desirable and assigns to judges the task of enforcing, not making, the law.