[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.