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.

I.  The Constitution Was Not Adopted By A Supermajority

McGinnis and Rappaport claim that “appropriate” supermajority rules tend to result in the entrenchment of welfare-enhancing policies.[3]  They also claim that the Constitution and its amendments have been passed (for the most part) under such rules.[4]  It follows, they argue, that courts will maximize social welfare by applying only the original, supermajority-approved understanding of constitutional provisions.[5] The Constitution was never approved by a supermajority, however, and therefore does not satisfy the basic condition of their argument for originalism.

A.  Only White Males Ratified the Constitution

With admirable candor, McGinnis and Rappaport concede that a “glaring defect” in the procedures used to adopt the Constitution was “their exclusion of African-Americans and women from the franchise.”[6]  They concede, too, that the ratification of the Constitution by nothing more than a white male plurality goes to “the theoretical heart of the supermajoritarian argument.”[7]

To salvage their argument, McGinnis and Rappaport must explain how a supermajority at time t₂ could confer its imprimatur upon a constitution adopted earlier at time t₁.  They do not.  They simply observe that the Civil War amendments gave blacks the right to vote, and that women obtained the right to vote in 1920.  But that would solve the problem only if blacks and women had been asked to ratify the Constitution retroactively.[8]  They were not.

What McGinnis and Rappaport do say, instead, is that they see no “strong case that the Constitution would have been systematically different had these excluded groups been included.”[9]  Absent “strong evidence” that such systematic differences would have existed, they argue, originalism is still welfare-enhancing because the provisions of the original Constitution “offer the best evidence of what good entrenchments would have resembled” under appropriate supermajority rules.[10]

There are several problems with this line of argument.  First, McGinnis and Rappaport offer no support, either empirical or theoretical, for their conclusion that political participation by blacks and women would have neither defeated the Constitution nor changed it in any meaningful way.  They offer only assertion, backed by an insistence that anyone wishing to prove them wrong must satisfy a heavy burden of proof.

Second, it is questionable whether a supermajority of the entire adult population would in fact have ratified the original Constitution.  It seems doubtful, for example, that blacks would have endorsed the fugitive slave clause of Article IV,[11] much less the enshrinement of the slave trade found in Article I, Section 9.[12]  To many people in 1787, however, a constitution without protections for the slave trade would no doubt have been “systematically different,” and in a highly unattractive way:  the inclusion of such provisions may well have been the price that had to be paid to secure the support of white southerners in pivotal slave states.[13]  The Constitution was a political agreement, and a political agreement is by definition a bundle of compromises. No one can say what kind of constitution would have been ratified in 1787—or, indeed, if a constitution would have been ratified at all—had the deal begun to unravel.[14]

Third, the argument is self-defeating.  If McGinnis and Rappaport are right that the will of a supermajority can be correctly divined by thought experiment, then the actual use of supermajoritarian procedures becomes unnecessary.  All constitutional decisionmaking and, indeed, all lawmaking could, in that case, be done faster and cheaper by thought experiment, while reaching the same result that actual supermajority voting would have produced.  There would be no need to incur the time and expense of the constitutional amendment process; nor would there be any need for judges to adhere to the original meaning of the Constitution.  Instead, judges could adopt up-to-date, welfare-enhancing policies in any given situation simply by asking themselves what a hypothetical supermajority would choose.  What McGinnis and Rappaport are defending on pragmatic grounds is not originalism, but rather counterfactual speculation about the behavior of a supermajority that never existed as a historical matter.

B.  A Supermajority of States Is Not a Supermajority of Voters[15]

McGinnis and Rappaport argue in favor of supermajority action by voters and legislators.[16]  Yet the Constitution was not ratified by a supermajority of either group of people.  It was ratified, instead, by a supermajority of states.

A supermajority of states is a far cry from a supermajority of actual people for several reasons.  First, only a simple majority of state delegates or representatives was needed to commit a state in favor of ratification.[17]  The delegates from Massachusetts, for example, ratified the Constitution by a vote of only 187 to 168,[18] while those from New York did so by an equally unimpressive margin of 30 to 27.[19] Second, only a simple majority of voters was required to elect those state delegates.

To see just how far a supermajority of states can diverge from a supermajority of actual people, imagine that the Constitution were to be submitted to the states for ratification today under the same formula employed by the Framers.  Under Article VII, nine out of thirteen states were required to ratify the Constitution.[20]  Today, that nine-thirteenths formula would require ratification by thirty-five out of fifty states (rounding up to the nearest whole number of states).  The population of the United States is approximately three hundred million people,[21] but the fifteen most populous states are home to over two-thirds of that total.[22]  This means that, under the Article VII formula used by the Framers, the Constitution could be ratified by a 70% supermajority of states containing less than one-third of the nation’s voters.[23]  Moreover, because only a bare majority of state voters is needed for any given state to ratify, the nationwide proportion of voters whose support would be needed to ratify the Constitution under the Framers’ formula must be further reduced by nearly half, to less than 17% of the electorate.

As a historical matter, it is more than a mere mathematical possibility that the supermajority of ratifying states represented less than a supermajority of voters.  John Marshall himself observed that “it is scarcely to be doubted that, in some of the adopting states, a majority of the people were in opposition. In all of them, the numerous amendments that were proposed, demonstrate the reluctance with which the new government was accepted.”[24]  New York exemplifies this reluctance. According to Hamilton, two-thirds of its ratifying convention and four-sevenths of its populace were opposed in principle to the new Constitution, but the convention nevertheless voted to ratify out of a widespread fear that failure to do so might lead to geographic partition of the state.[25]  It is thus highly questionable whether the Constitution was favored by a supermajority of the white male minority that was eligible to vote, much less by a supermajority of the entire adult population.

We are not the first to make the point that a supermajority of states is not truly a supermajority.  Ethan Leib makes a similar point in his own criticisms of McGinnis and Rappaport’s thesis.[26]  In reply, McGinnis and Rappaport argue that “the inclusion of a majority component” within a supermajority voting system does not transform the entire system into one of simple majority rule.[27]  If a rule requiring ratification by nine of thirteen states is only a majority rule, they ask, what would a rule requiring seven out of thirteen states be?[28]

This response betrays too great a fascination with the formal characterization of voting rules, and too little concern for what pragmatists are supposed to care about—namely, the welfare of actual people. People, not states, bear costs and reap benefits.  The number of states required for ratification is therefore a red herring, as is the rhetorical question of how a seven-state requirement would differ from a nine-state requirement. The first concern for any pragmatist ought to be the extent to which actual people, not geographically defined political units, were for or against the Constitution. 

II.  Supermajoritarian Lawmaking Does Not Necessarily Enhance Welfare

The basis of McGinnis and Rappaport’s argument is their claim that supermajority rules entrench desirable policies.[29]  Neither logic nor experience supports this claim very well.

First, there is no logical basis to conclude that supermajority rules entrench good policies, for a very simple reason:  preferences vary in intensity.  Even if the beneficiaries of a policy outnumber the losers, the losers may suffer to a much greater extent than the beneficiaries gain.  The sheer proportion of people who approve of a policy tells us how widely the costs and benefits of the policy are dispersed, but it does not show that the policy increases net social welfare.  Nothing prevents a supermajority from adopting policies that reduce net welfare as long as the costs of such policies are sufficiently concentrated.  Slavery provides an obvious example:  a society in which three-quarters of the citizenry are free and one-quarter are slaves can muster supermajority support for slavery, simply because the benefits of slavery are widely dispersed, while the costs are narrowly concentrated.  Yet it would be wrong to conclude on this basis that the gains to the slaveholders exceed the losses to the slaves.

Second, bargaining may produce supermajority support for pernicious measures.  In lawmaking, there is always more than one issue on the agenda, and some people inevitably care more about some issues than about others.  The result will be bargaining between those who favor a certain policy on issue A and those who favor a certain policy on issue B.  Such bargaining lies at the very heart of politics, and it frequently results in the adoption of widely opposed policies (such as the everyday pork-barrel spending bills that supermajority rules do nothing to prevent).

Our slavery example illustrates both points.  Imagine a nation consisting of three equally populous regions:  Oldland, Newland, and Southland.  All residents of Oldland oppose slavery but favor tariffs. All residents of Southland wish to maintain slavery but oppose protectionism.  All residents of Newland oppose both slavery and protectionism.  Thus, a two-thirds majority opposes both slavery and protectionism. Nevertheless, a single statute (or constitution) that entrenches both slavery and tariffs could muster a two-thirds majority, as long as Oldland is prepared to accept slavery in exchange for tariffs and Southland is prepared to do the opposite.

Our point is not that supermajorities invariably adopt bad policies.  Our point, rather, is that there is no theoretical basis for arguing—as McGinnis and Rappaport do—that supermajority rules tend to result in the adoption of better policies.  That claim can only be made on the basis of additional factual evidence, which they do not offer.

————

*.  Associate Professor of Law, University of San Diego; Assistant Adjunct Professor of Political Science, University of California, San Diego.

**.  Professor of Law, University of San Diego.  We are grateful to Dan Farber, Susan Franck, Ethan Leib, Robert Post, Mike Ramsey, Larry Solum, and David Zaring for their extremely valuable comments and suggestions.

1.  John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. Colloquy 68, 69 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/1/ (link).

2.  See, e.g., Charles Saunders Peirce, How To Make Our Ideas Clear, in 1 The Essential Peirce: Selected Philosophical Writings 124, 132 (Nathan Houser & Christian Kloesel eds., 1992) (advocating an epistemological approach focused upon “effects, which might conceivably have practical bearings”).

3.  Id. at 70.

4.  See id. at 70, 73.

5.  Id. at 69–70.

6.  Id. at 73 n.22.

7.  Id. at 79.

8.  Professor Leib makes the same point in his own response to McGinnis and Rappaport.  See Ethan J. Leib, Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-Originalists, 101 Nw. U. L. Rev. Colloquy 113, 117 n.19 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/7/ (link).

9.  McGinnis & Rappaport, supra note 1, at 81 n.55.

10.  Id.

11.  U.S. Const. art. IV, § 2, cl. 3 (link) (“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”).

12.  Id. art. I, § 9 (“The Migration and Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”).  Perhaps such provisions are what McGinnis and Rappaport have in mind when they say that the Constitution would not have been “systematically different” had blacks and women voted: excise a few offending provisions, they might argue, and the essential elements of the Constitution (whatever those might be) would still have passed by a supermajority.

13.  See, e.g., Christopher Collier & James Lincoln Collier, Decision in Philadelphia: The Constitutional Convention of 1787 137–52 (1986) (discussing how the issue of slavery was “enmeshed with a host of other problems” and “ran into everything,” and noting the awareness of northerners that “the Convention could not interfere with slavery very much, if at all, if they hoped to keep the Deep South states in the union”).

14.  There is also a deeper conceptual reason why it makes no sense to say that blacks and women would have voted to ratify the Constitution in 1787.  A world in which blacks and women could vote on such matters would have been a very different place.  The rules that denied the franchise to blacks and women did not exist in isolation.  They both reflected and perpetuated an entire system of social, political, and economic inequality.  An eighteenth-century America in which blacks and women could vote on a proposed constitution would necessarily have been a radically different and more egalitarian place in other ways as well.  This different, and better, version of America would presumably have experienced different needs and expressed different aspirations.  These are the kinds of profound differences that can influence the substance of a nation’s constitution.

15.  We are indebted to Dan Farber for prompting us to address this point.

16.  See McGinnis & Rappaport, supra note 1, at 70–73.

17.  See Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457, 487 n.112 (1994); Leib, supra note 8, at 120.

18.  See Michael Allen Gillespie, Massachusetts: Creating Consensus, in Ratifying the Constitution 138, 158 (Michael Allen Gillespie & Michael Lienesch eds., 1989).

19.  See Cecil L. Eubanks, New York: Federalism and the Political Economy of Union, in Ratifying the Constitution, 300, 328 (Michael Allen Gillespie & Michael Lienesch eds., 1989).

20.  U.S. Const. art. VII; see McGinnis & Rappaport, supra note 1, at 73.

21.  U.S. Census Bureau, Population Estimates Data Sets, http://www.census.gov/popest/datasets.html (last visited Sept. 30, 2007) (link).

22.  In descending order of population, those states are California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, Georgia, North Carolina, New Jersey, Virginia, Massachusetts, Washington, and Indiana. See id.

23.  For the sake of simplicity, we assume that the proportion of people in each state who can vote is the same.

24.  II John Marshall, The Life of George Washington 127 (1834).

25.  See Letter from Alexander Hamilton to James Madison (June 8, 1788), in 5 The Papers of Alexander Hamilton 2, 3 (Harold C. Syrett & Jacob E. Cooke eds., 1962) (reporting the fear among New Yorkers that “separation of the Southern district from the other part of the state . . . would become the object of the Fœderalists and of the two neighbouring states”); see also Marshall, supra note 24, at 28 n.1 (observing that New York was “apparently dragged into [ratification] by a repugnance to being excluded from the confederacy”).  Forrest McDonald put the vote for electors to the New York convention at about 16,000 to 7,000 against ratification, producing a convention of 46 opponents to ratification and 19 advocates.  Forrest McDonald, Alexander Hamilton 114 (1979).  Scholars have concluded—perhaps on the basis of Hamilton’s letter—that New York ratified because Virginia’s ratification a month earlier made it inevitable that the Constitution would be adopted, and because Jay and Hamilton threatened to take New York City out of the state and into the Union if the convention voted against the Constitution. See id. at 115; Eubanks, supra note 19, at 325–30.

26.  See Leib, supra note 8, at 120.

27.  John O. McGinnis & Michael B. Rappaport, Originalism and Supermajoritarianism: Defending the Nexus, 102 Nw. U. L. Rev. Colloquy 18, 24 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/18/ (link)

28.  See id. The gist of McGinnis and Rappaport’s position seems to be that more is better:  the greater the consensus of any kind needed to adopt a policy, the better the resulting policy.  For example, the requirement of a two-thirds vote of both houses of Congress is, in their view, a desirable supermajority rule because it “requires a greater consensus than a mere majority, even though a mere majority of the people in each district can put those legislators in office.”  Id. at 24.  By the same logic, a rule requiring a supermajority of states rather than people would still be a welfare-enhancing supermajority rule simply because it requires more consensus than a rule requiring a majority of states.

“More is better” is an appealing slogan, but one that ultimately leads to ruinous results.  If McGinnis and Rappaport truly mean to argue that greater consensus is always better than lesser consensus, then logic dictates that they should favor total consensus in the form of unanimity requirements, which would of course lead to complete gridlock.  They do not go that far; neither, however, do they qualify their “more is better” view or recognize the existence of a potentially thorny tradeoff between degree of consensus and gridlock.

29.  See McGinnis & Rappaport, supra note 1, at 70.

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Copyright 2007 Northwestern University      

Cite as: 102 Nw. U. L. Rev. Colloquy 86 (2007).

Persistent URL: http://www.law.northwestern.edu/lawreview/Colloquy/2007/27

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