Lost in Space: Laurence Tribe's Invisible Constitution

Eric J. Segall[*]

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For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution.  As early as 1798, Justices Chase and Iredell differed over whether Supreme Court Justices should employ natural law principles to decide the cases before them.[1]  Almost one hundred years later, James Bradley Thayer argued for greater judicial deference to political institutions by suggesting that judges should invalidate decisions by the elected branches only when those decisions were clearly inconsistent with unambiguous constitutional text.[2]  In the 1960’s, Alexander Bickel wrote of the “counter-majoritarian difficulty,”[3] spawning hundreds of law review articles written by the legal academy’s most esteemed scholars trying to justify decisions such as Brown v. Board of Education, Baker v. Carr, and Roe v. Wade[4] against the charge that the rights protected in those cases could not be gleaned through constitutional text and history.[5]  And in 1975, Thomas Grey wrote his seminal article Do We Have an Unwritten Constitution?,[6] which helped spark a volume of responses on this question from eminent scholars on both the left and the right.[7]  Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution.[8]  Given my inclination to agree with Professor Tribe’s politics, and in light of his substantial reputation as a teacher, scholar, and constitutional litigator, it would be wonderful to report that his new book adds to the considerable literature on this subject.  Unfortunately, The Invisible Constitution fails to advance the debate.

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.

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]

Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-Originalists

By Ethan J. Leib   

[Editor's Note:  This piece is 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).]

Abstract

John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government.  But they now go too far.  In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism.  This most recent piece of their project simply does not work.

In this Essay, I dispute each of their substantive claims.  First, I argue that there is nothing newly pragmatic about their defense. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules.  And, finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime.  In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention.

It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.

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Copyright 2007 Northwestern University      

Cite As:  101 Nw. U. L. Rev.  (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 113 (2007), http://www.law.northwestern.edu/lawreview/Colloquy/2007/7/.

Persistent URL:  http://www.law.northwestern.edu/lawreview/colloquy/2007/7/      

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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.

Click Here to Download This Short Essay

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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A Cautionary Tale: By One Way of Counting the Democrats' Hold on the New House of Representatives Will Be Very Precarious

By Robert W. Bennett[*]

We all know that the Democrats gained a decisive House of Representatives majority in the 2006 election, so that their party will be comfortably in control of that body in the Congress that will convene in early January of 2007.  As of the time I am writing this, the Democrats have clearly won 231 of the 435 House seats for the new Congress, with five races still undecided.[1]  With a majority of that size, we can say with great assuredness that the Democrats will be able to elect the new Speaker and name Chairs for House committees.  That is the sense in which the Democrats will be in control—a very important sense indeed.  When they stick to their partisan guns, moreover, the Democrats will also be able easily to control final votes on legislation.[2] 

But even with party fidelity, the way the votes are to be taken on one matter would put the Democrats in control by the skin of their teeth.  The change in party affiliation—or temporary defection—of just one vote could deprive the Democrats of that bit of "control."  The matter I have in mind will never come before the House that will convene in January, but the precariousness of the Democrats' control in such a count should provide a warning sign for the future—for the Democrats, to be sure, but more importantly, for all of us.

A Dialogue on Originalism Occasioned by Bennett's Electoral College Reform Ain't Easy

By Lawrence B. Solum & Robert W. Bennett

[Editor's Note:  The following piece is an informal dialogue between Professors Solum and Bennett which grew out of Bennett's prior piece on the Colloquy, Electoral College Reform Ain't Easy (click here to read the original piece).  Other readers wishing to participate in this dialogue are invited to submit a piece to the Colloquy Editor, or to leave a comment below.]

Solum:

I recently posted about Bennett's very interesting piece on Legal Theory Blog: Bennett on Electoral College Reform.  My post quoted a long passage, but in this comment I want to focus on the following:

If we took the argument for constitutional protection [of an elector's right to vote contrary to instructions] seriously, we would also have to take seriously other aspects of the original conception of the presidential selection process.  For instance, neither political party designation nor the names of presidential and vice presidential "candidates" could appear on ballots, because that is a way of signaling pre-commitment of electors, rather than a process of debate and discussion that was the reason for creating the electoral college.

My post then commented:

Bennett's argument simply does not follow.  From the fact that the Constitution contemplates that electors can vote free of instruction, it simply does not follow that ballots cannot list candidate names or party affiliations.  There is a tension at the level of rationale, but such tensions are ubiquitous in the law.

Professor Bennett's reply has been posted on Legal Theory Blog (Bennett Replies on Electoral College Reform), and our exchange is cross-posted here on the Colloquy.