Thursday, January 18, 2007
One aspect of my paper with John McGinnis on supermajority rules and originalism bears emphasis: the paper attempts to explain why the Constitution is great. The paper argues that the original constitutional provisions and its amendments are desirable because they had to pass through a supermajority rule. Here is a brief excerpt from the paper:
While most Americans believe that the amended Constitution is an exemplary document, there are few explanations for its excellence. Rather than view the document as the product of a few great men, we see it as largely the result of the supermajoritarian process that enacted it. That process generated some of the most distinctive and praised features of our Constitution. Because of the need to obtain consensus at the convention [and to have a chance of securing ratification by a supermajority of states], the most nationalist forces conceded an indestructible role for the states and gave us constitutional federalism. To obtain ratification in the necessary nine states, the nationalists had to promise that a bill of rights would be enacted once the new government was established. Thus, the supermajoritarian ratification process was the big bang of our Constitutional universe – bringing into effect the key elements of a document admired around the world.
This theory then helps to explain why the actual provisions of the Constitution are generally desirable. And it is their desirability that explains why following the original meaning is pragmatic.
Over at Prawfsblawg, Ethan Leib argues that our theory is not the first one to give a pragmatic justification for originalism. That is true: as we say in the paper, many have argued that originalism constrains judges and protects the rule of law. What is new in our paper is that we explain why the Constitution has desirable provisions and therefore why following originalism will not just promote the rule of law, but also good outcomes.
(Ethan has a couple of other criticisms of our paper, but in the main we address these points in the paper.)