There Is Nothing Pragmatic About Originalism

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

[download pdf]

[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[**]

[download pdf]

[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.