A Pragmatic Defense of Originalism

By John O. McGinnis & Michael B. Rappaport

Abstract:

In this brief essay, we offer a new defense of originalism that focuses on its consequences.  We argue that interpreting the Constitution according to its original meaning is more likely to produce good results today than non-originalist theories of interpretation.  We thus offer a defense of originalism that transcends previous arguments that originalism is to be preferred because of the constraints it imposes on judges or because of its consonance with the rule of law.

Our argument proceeds in four steps.  First, entrenched laws that are desirable should take priority over ordinary legislation, because such entrenchments operate to establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals.  Second, appropriate supermajority rules tend to produce desirable entrenchments.  Third, the Constitution and its amendments have been passed in the main under appropriate supermajority rules and thus the norms entrenched in the Constitution tend to be desirable.  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.

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Copyright 2007 Northwestern University

Cite As: 101 Nw. U. L. Rev.  (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/1/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2007/1/

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