Bench Memos

McGinnis and Rappaport Respond

Together with the general high praise that I recently offered for the new book, Originalism and the Good Constitution, co-authored by originalist scholars John McGinnis and Michael Rappaport, I presented two sets of objections and reservations, one on their broad normative justification of originalism, the other on their theory of precedent. On the Originalism Blog, McGinnis and Rappaport have kindly taken issue with my critiques, and I am pleased to call attention to their responses on the normative justification and on precedent.

On the whole, I’m not persuaded to alter my critiques (though I will acknowledge that McGinnis and Rappaport provide some serious practical objections to my admittedly adventuresome alternative for reconciling originalism with precedent). But rather than extend the back-and-forth here, I’ll leave it to interested readers to assess the competing arguments. I will also again encourage anyone interested in debates over originalist methodology to read their book.

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