Originalism and Supermajoritarianism: Defending the Nexus

By John O. McGinnis[*] and Michael B. Rappaport[**]

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[Editor's Note:  This piece is a reply to Leib, Why Supermajoritarianism Does Not Illuminate the Debate Between Originalists and Non-originalists, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 113 (link).  Leib's piece was a response to McGinnis and Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007) (link).]

Introduction

Despite their ubiquity in the law, supermajority rules are little discussed and hugely undertheorized.[1]  We are thus grateful to Professor Leib’s response to our essay,[2] because it allows us to expand on the subject.  But if Professor Leib, who has written interestingly on supermajority rules in the context of the jury, is as mistaken on some fundamental points in our argument as his reply suggests, we must become better evangelists for our favorite topic.

This brief reply responds to Leib’s criticisms of our essay.  We show that, among other things, Leib fails to appreciate what makes our argument for originalism new; that he misunderstands the nature of supermajority rules in a complex voting system; and that he does not recognize the differences between constitutional provisions enacted under genuine supermajority requirements and ordinary statutes that happen to receive the support of a supermajority of legislators.

We are also grateful for the opportunity to reiterate that our essay did not purport to offer a comprehensive new defense of originalism, but instead only the outlines of a theory.  Professor Leib criticizes us at several points for not developing an argument or answering some possible criticism, but full development and anticipation of even the most important criticisms are not possible in a fifteen page essay.  The advantage of the short essay form now becoming more popular in the academy is that it allows one to provide the essence of a new idea, leaving some issues to later development and eschewing discussion of issues that have been thoroughly debated elsewhere.  Happily, this reply allows us to develop some additional parts of our theory.  Here, then, we answer some of Leib’s concerns, including explaining how much support is needed to establish the applicable interpretive rules, and discussing the effects of the status quo on the desirability of a constitution produced by supermajority rules.[3]

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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