McGinnis/Rappaport’s Originalism and the Good Constitution—Part 1

by Ed Whelan

I’ve now completed Originalism and the Good Constitution, an important new book co-authored by leading originalist scholars John O. McGinnis and Michael B. Rappaport. In their book, McGinnis and Rappaport present a “normative defense of constitutional originalism”—i.e., an argument that “originalism advances the welfare of the present-day citizens of the United States because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories.”

Originalism and the Good Constitution is an impressive work, rich with interesting and intelligent arguments. In developing their normative argument for originalism, McGinnis and Rappaport stake out and defend various positions on contested points of originalist methodology. Their book will surely play a prominent role in the ongoing debate over originalism.

I won’t try to summarize the entire book here. But I would like to sketch, in this post and the next, two sets of objections and reservations that I have. Here’s my first:

I’m not persuaded that McGinnis and Rappaport offer the best or the most effective normative defense of originalism. They identify but reject one “nonconsequentialist argument for originalism”—namely, that “it follows from the concept of law.” As they sum up the argument, “If we are to be faithful to law, we must follow the law’s original meaning.” They observe that “it seems doubtful that originalism would have much appeal if the Constitution reflected the policies of a brutal dictator.” But that strikes me as an argument against a brutal constitution (and against an absolutist duty to be faithful to law, no matter how evil), not an argument against originalism.

To state my point more affirmatively: I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution. (That normative argument in turn builds on Solum’s argument that the semantic content of any clause of the Constitution is the clause’s original public meaning.) Even in the collapsing state of our culture, the proposition that it’s generally wrong to lie seems to me to retain broad appeal.

By contrast, as McGinnis and Rappaport acknowledge, their normative argument is based on “welfare consequentialism” (“a modern version of utilitarianism”), which is a “controversial foundation for moral and political theory.” Further, while I think that McGinnis and Rappaport responsibly carry out their assessment of the societal consequences of originalism, any such assessment is so malleable and so contestable that other welfare consequentialists could easily arrive at different conclusions. In particular, given the high level of confidence that living constitutionalists have in their own judgments of what policies are best for society (and of what matters therefore ought to be removed from the democratic processes), I doubt that they are likely to be persuaded by a consequentialist argument for originalism.

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