In my discussion of the constitutional case for impeaching Bush, I remarked on the current reigning pathology of American constitutional law, namely, the infatuation with originalism on both the right and the left; I wrote:
Originalism (whether about intentions or meanings) is now the dominant, almost entirely unquestioned touchstone of constitutional argument and interpretation in the United States. This is odd since there is no plausible, theoretical justification for it that speaks to the kinds of issues I noted in passing and that are taken up by Professor Marmor in the piece linked to, above.
Although there are analogous questions that could be raised about constitutionalism itself, the issue of originalism as a theory of interpretation is severable. We might agree that later majorities should be bound by an earlier foundational document (the crux of constitutionalism), but that simply does not settle the question of how the meaning of that document should be fixed. (Last year, when I pressed Akhil Amar about this during a visit to Texas, he argued that to be bound by the text one has to be bound by the original understanding. This is, alas, also a non-sequitur, and not just conceptually: in practice, for example, Canadian courts are barred from originalist interpretations of the Charter, yet still manage to interpret and apply it.)
Those who would supplement constitutionalism with originalism need to explain why the original meaning or intentions are authoritative. Intentions might be authoritative if, for example, we had consented to be bound by them; but that is inapposite in this case. Intentions might be authoritative if they reflected a kind of practical/moral expertise or insight, such that (to put it in Razian terms) we are more likely to do what we really ought to do by treating these original intentions as authoritative with respect to our decisions and choices today; but that also seems inapposite in this case, absent some extended moral and political defense of the special expertise of the framers of the Constitution.
In general, originalists fail to come to terms with the question of why original meanings or intentions should be authoritative, and opt instead for instrumentalist arguments of the form, "We need originalism to constrain judges." But there are multiple ways to constrain judges (make their decisions appealable; permit legislative overrides [as, e.g., the Canadian Charter does in certain contexts]; adopt a simple rule like, 'Appellant always wins' [this last being far more efficient than originalism!]; adopt a more complex rule like "the plain, current meaning controls," and where it is unclear, do a Gallup poll to see what the "people" want), and so what is needed is some clear explanation of why originalism should be the preferred way of achieving constraint (why is constraint a value? how much constraint can originalism deliver compared to alternatives? etc.).
Perhaps originalism can meet these challenges. It is a decidedly odd feature of our contemporary constitutional culture in the U.S. that, despite the absence of answers--indeed, despite the recognition in many quarters that these are real challenges!--originalism should be so widely accepted across the political spectrum.
Mike Rappaport (Law, San Diego) responds with an argument that he believes is not caught by these criticisms; here is the relevant portion:
[John] 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.
[I]t 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.
I find this argument a bit confusing, and Professor Rappaport will no doubt correct me if I am reconstructing the argument incorrectly. But here is how I understand it:
1. The text of the Constitution clearly provides that it only may be amended by procedures requiring super-majorities.
2. Legal norms enacted by super-majorities are generally superior (along various relevant evaluative dimensions) to legal norms enacted by simple majorities (let alone legal norms enacted by simple majorities of very small groups, such as nine judges on a court).
3. Originalism is the preferred mode of interpretation, then, because (a) the original meaning is the one vetted in the super-majoritarian procedure, and (b) the original meaning constrains judges from effecting non-super-majoritarian amendments through "loose" interpretation of the text.
The crucial premise here is, I take it, (2): it justifies 3(a)'s claim that the original meaning/intention should be authoritative; and it explains why the kind of constraint in 3(b) is to be preferred over other possible kinds of constraint.
Unfortunately, I don't see how 2 can possibly bear any of this argumentative weight. At best, 2 establishes that norms so enacted are likely (how likely? it's unclear) to be normatively superior to norms not so enacted. It can not possibly establish that the norms so enacted in fact have normative authority.
Remember: the fundamental question is why a particular meaning has a justfieid claim of authority over us, i.e., why we should comply with that way of construing the meaning rather than some other. It is very hard to answer this question without some explicit account of what confers normative authority. Two possibilities (but there are others) are: a meaning is authoritative because we have consented to be governed by those who authored it; or a meaning is authoritative because we are more likely to do what we really ought to do if we are governed by that meaning. Let's call the latter, following Raz, the service-based conception of normative authority.
McGinnis & Rappaport eschew consent as a basis for the normative authority of the original intent, which, of course, we must. Their argument, insfoar as it is responsive to the fundamental question about the normative authority of the original meaning or intent, is then dependent on the service-based conception of normative authority. Their distinctive route is through the observation that norms arising from super-majoritarian procedures are normatively superior to other kinds of norms. But this is too weak to meet the demands of the service-based argument for authority.
First, it is too weak, because at best it shows only that super-majoritarian norms are more likely to be normatively superior, not that they actually are. (One might [indeed, should] question whether this is even true, but I'm happy to grant it here for the sake of argument.) Second, it is too weak, because the superiority of one set of norms to another set of norms is insufficient to show that the norms, in fact, are authoritative, i.e., are the kind that will make it more likely that we will do what we really ought to do. Super-majoritarian norms may be better, in general, than norms enacted other ways; that is still compatible with all such norms (even as originally understood) having no justified claim of authority over us.
So Professor Rappaport's argument is, indeed, a bit different from the central examples I was thinking of, but it fails for similar kinds of reasons as the other originalist arguments. To Professor Rappaport's credit, he is, though, engaged in the right kind of inquiry, unlike the various ignoramuses who can't even understand what the issue is.
Originalism, I'm afraid, is still the theory of interpretation without a theoretical justification. That it should be so influential in our constitutional culture, nonetheless, cries out for an explanation, though one that is more likely to be sociological than philosophical.
(A different argument for 3(b), perhaps intended by Professor Rappaport, would appeal to premise 1. Insofar as we were committed to constitutionalism, we are bound by the clear language of the constitution, which mandates constraint on amendment. That much seems straightforward. It would take a further argument, however, to establish that constraint via originalism is to be preferred, and that argument, I have suggested, fails.)
(A related discussion of this topic is here, though this author, as I read him, takes consent to be essential for normative authority, a view I do not accept. UPDATE: Ciceronian Review here usefully clarifies his earlier discussion, so it seems we are both driving at the same basic point vis-a-vis Rappaport.)
UPDATE: My colleague Frank Cross writes with additional comments of interest:
I think you let McGinnis/Rappoport off a little easy.
I believe the simplest answer to their argument is that even if one assumes
in the abstract that a supermajority produces a better rule than a
majority, it in no way follows that at 200+ year old supermajority rule is
preferable to a contemporarily adopted majority rule.
But there is a somewhat more subtle answer that's even better, I
think. All rules adopted in the US functionally require a supermajority,
simply because of the separation of powers and the operation of
Congress. So their argument must be that a larger supermajority is always
better than a smaller supermajority, which I don't think they have
established (they don't argue for unanimity). And it is mistaken to think
that originalism is more likely to require a greater supermajority
rule. Suppose that the policy preferred by the Congress and the President
is consistent with an originalist understanding of the Constitution. In
this case, binding the USSC to originalism and thereby compelling its
approval of the law would effectively reduce the supermajority required for
government action. If the USSC is activist and has considerable
discretion, that would effectively require a greater supermajority
consensus than would a court that used originalism.
Of course, the above all presumes that reliance on originalism has some
meaning in determining decisions, which appears to be very improbable.
Of course, I wanted to grant, for the sake of argument, that super-majority procedures have the virtues they contend, in order to show that even if that were true, it would not suffice for establishing the normative authority of original intent or meaning.