Sunday, March 23, 2008
McGinnis' and Rappaport's Consequentialist Originalism
A consequentialist argument for originalism? That's what John O. McGinnis, Northwestern, and Michael B. Rappaport, University of San Diego, have in mind in their paper The Desirable Constitution and the Case for Originalism. What is perhaps most interesting about the paper, however, is that its defense of originalism depends on an assumption that the constitution was enacted under a "supermajority process," and yet they acknowledge that a majority of those living in the United States (women and African Americans) were excluded from participation, thereby making supermajoritarianism impossible. Here's the abstract: In this article we argue that originalism advances the welfare of the present day citizens of the United States, because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories. A constitution that is enacted under a strict supermajority process is likely to be desirable, because such a process has features appropriate for determining the content of entrenched laws. In other words, the desirability of a constitutional provision derives from the consensus support it gained among the enactors. Preserving the meaning of the constitution which the enactors intended preserves that beneficence for today. We show that the enactment and amendment process of the United States Constitution largely followed an appropriate supermajoritarian template, which strongly suggests the desirability of the original constitution and its amendments. Nevertheless, we recognize that the original constitutional enactment process was defective in that it excluded African Americans and women. Accordingly, to address the issues that arise when a constitution is enacted pursuant to faulty supermajority rules, we develop a theory of supermajoritarian failure. We demonstrate that when the supermajoritarian process for enacting a constitution has been defective (and has not been corrected), the nation faces three choices: enacting a new constitution, following the existing constitution despite its imperfections, or permitting the judiciary or some other entity to correct these imperfections outside of the supermajoritarian amendment process. We also show that, given the limited nature of the existing defects in the Constitution, following the Constitution better preserves the benefits of constitutionalism than the alternatives of enacting a new constitution or judicial correction. Our argument does not merely explain why originalism is the preferable theory of interpretation; it also reveals the type of originalism that should be employed. Rather than attempt to determine the best originalist interpretive theory in some abstract sense, we should employ the interpretive rules that the constitutional enactors intended to apply. In that way, we use the meaning that actually passed through the supermajoritarian process. We call this form of originalism "original methods originalism. "