"Ingenious Argument" or a Serious Constitutional Problem? A Comment on Professor Epstein's Paper

By Philip Hamburger[*]

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In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment.  His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.”[1]  Yet this conclusion rests on mistaken assumptions—both about the IRB laws and about the constitutional objections—and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.

There Is Nothing Pragmatic About Originalism

By David S. Law[*] and David McGowan[**]

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[Editor's Note:  We are proud to present Parts III and IV of this Colloquy Essay.  Parts I and II were published here last week, and you can view the piece as a whole here.  Previous pieces in this series, by Professors John McGinnis, Michael Rappaport, and Ethan Leib, can be found here.]

III.  Tipping the Scales:  The Relative Costs and Benefits of Originalism and Pragmatism

In this Part, we identify four flaws in McGinnis and Rappaport’s cost-benefit analysis, all of which serve to disguise the actual costs of originalism and to inflate its benefits relative to other approaches.  First, supermajority approval of amendments is very costly, to the point that beneficial amendments may never be adopted.  Second, originalism is subject to significant error costs.  Third, a court may pick better policies than a supermajority.  Fourth, the costs of originalism accumulate during the inevitable delay that attends our supermajoritarian process of constitutional amendment.

There Is Nothing Pragmatic About Originalism

By David S. Law[*] and David McGowan[**]

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[Editor's Note:  We are proud to present this Colloquy Essay in two installments.  Parts I and II are published here, and Parts III and IV are published here.  Previous pieces in this series, by Professors John McGinnis, Michael Rappaport, and Ethan Leib, can be found here.]

John McGinnis and Michael Rappaport propose that originalist constitutional adjudication produces better consequences than competing approaches.  They say they have “sketch[ed] the main elements of a pragmatic defense of originalism.”[1]  We disagree.  Pragmatism is about how well things work in practice, not how they should work in theory.[2]  McGinnis and Rappaport’s argument turns pragmatism on its head:  it rests not on any evidence of originalism’s actual superiority to other approaches, but rather on theoretical claims about the supermajoritarian character of originalism and the merits of supermajoritarian policymaking.

Part I of this essay explains why originalist judging does not honor the results of what McGinnis and Rappaport would consider “appropriate” supermajoritarian decisionmaking.  Part II demonstrates that supermajority rules do not necessarily lead to the adoption of beneficial policies.  We show that the actual effect of such rules depends upon a host of additional factors that cannot be analyzed in the abstract.  In Part III, we review the ways in which McGinnis and Rappaport understate or ignore the costs of originalism, relative to those of other approaches.  Finally, in Part IV, we present evidence that non-originalist judicial decisionmaking has, in fact, done a good job of enhancing social welfare, as measured by popular approval of the Court’s decisions.

Editorial Note: Colloquy Summaries

Happy Columbus Day to all of our readers!  This week, we take a short respite from our brisk publication schedule to introduce a new feature to our young site.  All the colloquies appearing on this site, from the last year and going forward, can now be found on one convenient page.  This page briefly summarizes each colloquy, and provides direct links to each piece in the colloquy.  These "Prior Colloquies" are always available by following the link in the right-hand sidebar, or you can click here.

Enjoy, and thanks for reading!

--Isaac, Melissa, Rich, and the Colloquy staff

Selecting the President: A Bad Idea Out There in California

[Editor's Note:  A shorter version of this piece, titled For California Voters, a Cure Worse than Ill, was published in the Sunday Opinions section of the Chicago Tribune on September 23, 2007.]

By Robert W. Bennett[*]

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California, like all states but two, chooses its electors in a single statewide winner-take-all contest.  California has been reliably Democratic in recent presidential elections, and the result is that neither major party candidate has seen fit to campaign in the state, despite the fact that, at fifty-five electors, its delegation is the nation’s largest by some measure.  Other populous states with a decided political tilt, like Texas, New York and Illinois, are similarly given short shrift in presidential campaigning.  The large “swing” states like Florida, Pennsylvania, and Ohio get almost all of the general election attention these days from major-party presidential candidates.

The campaign neglect has apparently rankled in California, and the state has become the site of a great deal of reform effort.  The most recent proposal[1] would change California’s winner-take-all approach to the system found in Maine and Nebraska, where all but two of the electors are determined by the popular vote in individual congressional districts.  Maine’s and Nebraska’s use of districting (since the 1972 and 1992 elections, respectively) attracts little attention because those states have small numbers of electors (and, to boot, the districting has never yielded a split electoral college delegation in either state).  A major claim on the website of the organization sponsoring the California move is that this would make the presidential elections in the state more “democratic” by making the process competitive.  While the problem of competitiveness in California and other non-swing states is real, the suggested cure in California—without similar action by other states—is a terrible idea.