Berman and Toh on the New and Old Originalism: Part III – McGinnis and Rappaport

(In Parts One and Two of this post, I criticized Berman and Toh’s discussion of the New and Old Originalism. Here I take issue with their treatment of my own work.)

Berman and Toh also discuss my originalist work (with John McGinnis). Once again, I find the argument very problematic. They write:

The generalization can be highlighted by briefly recognizing some exceptions—older originalists whose views are more clearly grounded in an account of law, and newer originalists whose views seem mostly motivated by commitments regarding adjudication.

John McGinnis and Michael Rappaport exemplify the [latter] possibility. They are energetic and respected contributors to the current theoretical defenses of originalism who are at the same time throwbacks. McGinnis and Rappaport foreground a normative theory of adjudication and background jurisprudential claims about the ultimate criteria or determinants of the law. Their “normative defense of originalism,” as they call it, is chiefly premised on the pragmatic or consequentialist 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.” Loosely speaking, this is an argument about why judges should render originalist decisions or interpret the Constitution in an originalist manner. It is hard to make sense of this as an argument about the ultimate criteria of legal validity or determinants of the content of the existing law.

First, we argue that the actual meaning of the Constitution as a document is its original meaning (and that it must be interpreted using original methods originalism). In this respect, we understand our argument to be very similar to the one that Lawson makes as well as many other new originalists. Berman and Toh miss this completely. (It is true that our argument is distinctive because we believe original methods originalism is the right way to determine the Constitution’s meaning but given the issues Berman and Toh are concerned with, that is a detail.) Thus, our argument here does not significantly differ from other new originalists.

Second, we do provide a normative argument for following the original meaning of the Constitution – that this Constitution is a good one since it was selected through a desirable enactment process. Berman and Toh refer to this as a theory of adjudication. And it may technically be one, but describing it as such is misleading. The normatively desirability of the Constitution is not intended as a constraint on judges only or principally, but on all actors.

But more importantly, the fact that we make a normative argument for following the Constitution hardly renders us old originalists. Normative arguments are made for following the Constitution by Whittington, Barnett, Balkin, and Solum. It is principally Lawson and Sai Prakash who don’t make normative arguments.

Finally (and moving away from my work), Berman and Toh argue that defenses of originalism based on a theory of adjudication are not persuasive because they rely on caricatures of nonoriginalism. They write that the originalist argument “gains whatever apparent plausibility it might enjoy from a worldview that imagines all nonoriginalists as Brennan and Marshall, and none as, say, Breyer or Souter.” Their idea seems to be that originalists assume that the justices will act in radical ways, but they don’t always do so. But the radicalness or moderation of the justices is not the issue. The question is whether it makes sense to have constitutional norms made by the people through the amendment process or through nine unelected justices. One need not assume that all justices are radical to argue that the former is better than the latter.

In the end, then, I disagree significant with Berman and Toh. I don’t think their proposal captures the new originalism, the old originalism, or my own work.

Despite these very significant disagreements with their work, I do want to end on a positive note. Berman and Toh are engaged in an effort which is very important – having people who disagree with a movement read the works in that field and attempt to come to terms with it. This is an essential part of the academic enterprise. That a person within that movement disagrees with their points is hardly surprising. Their effort is to be commended.

Reader Discussion

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on December 04, 2013 at 10:06:57 am

In your Part II posting, Kevin commented on the difficulty the non-initiate would have in understanding these matters. he is quite correct - it is somewhat difficult to follow the arguments - or at least to grasp their full import.
I am one of those. Nevertheless, I would say that so much of this legal "disputation" appears to me to be somewhat "Swiftian" where the principal difficulty would be deciding which eye is to point toward the heavens and which toward the earth. Effectively, however, one decides, what is in front of us may very well be missed - or at least mis-perceived.
Your approach seems to have the advantage of recognizing that there is some "normative" state or conditions to which we should aim - or better yet, for which this body of "constituent law" was created to protect.
See: Richard Epstein here: http://www.hoover.org/publications/defining-ideas/article/162686

Also, Michael Greve's "The Upside Down Constitution" which provides a unique method for understanding what may have been the intent of the Founders as well as some controversial SC decisions over the years.

Both men argue that there is, in fact, an underlying ethos that animates the Constitution and that failure to recognize that ethos results in a distortion of foundational principles. To my simple mind, this recognition is critical and has precedence over any specific method of adjudication, textualism, etc etc.
Simply put: That which infringes upon ordered liberty and / or competition is to be denied. Start with that and then let us refocus our Swiftian vision on to some specific textual or other issues.
We will probably end up OK!!!

take care

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