Originalism and The Good Constitution: A Discussion

Originalism—the view that the Constitution should be interpreted according to its original meaning—has been an important principle of constitutional interpretation since the early republic. Today this theory has prominent adherents on the Supreme Court in Justice Clarence Thomas and, at least in “faint-hearted” form, Justice Antonin Scalia. Heller v. District of Columbia recently featured both majority and dissenting opinions that were wholly originalist in style. Legal academics across the political spectrum espouse some version of originalism.

Nevertheless, originalism continues to be plagued by challenges, the most salient being how it is to be justified. But originalism is also confronted by many other fundamental questions. What is the precise nature of an originalist method of interpretation? Isn’t it wrong for the living to be governed by the dead hand of the past?

A more general sense of disquiet underlies these specific questions. Law in general, and constitutional law in particular, should be measured by its contribution to our current welfare. Originalism seems to be focused on the distant past rather than the present and, on its face, does not concern itself with desirable results. Thus, it seems vulnerable to the central claim of living constitutionalism—that constitutional interpretation should be guided by a modern vision of a good society.

In Originalism and the Good Constitution, we present a new normative defense of constitutional originalism that connects this interpretive method directly to the concept of a good constitution. We argue that originalism advances the welfare of the present-day citizens of the United States because it generates constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories. The benefits of ordinary legislation for society and the proper theory of its interpretation are routinely connected to the virtues of lawmaking by a democratic legislature. We likewise connect the benefits of a desirable constitution and the proper theory of constitutional interpretation to the virtues of the constitution-making process.

The Desirability of a Constitution Enacted Under Supermajority Rules

Although our argument for originalism has its complexities, its essence can be captured in three simple premises that lead to a conclusion favoring originalism. First, desirable constitutional provisions (or as we also call them, entrenched laws) should take priority over ordinary legislation because such entrenchments establish a structure of government that preserves democratic decision making, individual rights, and other beneficial goals. Second, appropriate supermajority rules are a sound method of producing desirable entrenchments and no superior method is available. 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. From these premises, it follows that the desirability of the Constitution requires that judges interpret the document based on its original meaning because the drafters and ratifiers used that meaning in deciding whether to adopt the Constitution.

In short, it is the supermajoritarian genesis of the Constitution that explains both why the document is desirable and why that desirability requires that it be given its original meaning. While there is one significant way in which those supermajority rules were not appropriate–the exclusion of African Americans and women from voting for and serving as constitutional drafters and ratifiers—this defect has rightly been removed.

Note the structure of this defense of originalism. It defends the quality of constitutional provisions largely by reference to the likely consequences flowing from the process that created them. It avoids the Scylla of completely formal defenses of originalism and the Charybdis of completely contestable assertions of what constitutes goodness. It is also consistent with perhaps the most common defense of originalism: that it generally ties judges to rules. These rules consist of the interpretative rules of originalism itself as well as the substantive rules in the Constitution. But to the virtue of rule following, it adds the even more important virtue of following beneficial rules.

Our central argument for originalism is that it preserves the benefits of a desirable Constitution. Thus, like some other originalists, we premise our defense of the Constitution on its desirability. But unlike other defenses, we do not define desirability based simply on our own political philosophy. Instead, crucial to our defense of originalism are our arguments that a desirable constitution should reflect the views of a diverse society, that the best way to create a good constitution is through relatively stringent supermajority rules, and that the supermajoritarian procedures for enacting the US Constitution are largely the appropriate ones.

A key issue for our defense is the proposition that supermajority rules are the most desirable way of creating good constitutional provisions and, in particular, that they are better than majority rule. While majority rule is thought to generally produce ordinary legislation that is desirable, permitting a majority to entrench norms would be problematic. Entrenchments need to be bipartisan and to reflect consensus to create allegiance and stability, but majority rule does not generate such consensus and bipartisanship. Entrenchments, which are designed to endure, also need to reflect the long view and to protect minority rights. But majority rule neither promotes the deliberation needed for the long view, nor is conducive to protecting minority rights.

By contrast, the passage of entrenchments under appropriately stringent supermajority rule would compensate for majority rule’s defects in the entrenchment context and produce good entrenchments. Supermajority rules, for instance, directly address the need for consensus by permitting only norms with the support of a substantial consensus to be entrenched. Supermajority rules also dampen partisanship by making it less likely that entrenchments could be passed with the support of only one party. Wide support for a constitution helps to create legitimacy and allegiance for the nation’s fundamental law.

Supermajority rule also encourages a nation to make good long-term decisions about entrenchment by creating a veil of ignorance and improving deliberation. A strict supermajority rule (for both enactment and repeal of entrenchments) improves the quality of entrenchments by helping to create a limited veil of ignorance. Because provisions so entrenched under supermajority rules cannot be easily repealed in the future, citizens and legislators cannot be certain how the provisions will affect them and their children. Hence they are more likely to consult the interests of all future citizens—the public interest—to determine whether to support a provision. For example, because people will not know whether their party is more likely to control the legislature or the executive, they will allocate powers between them based on their view of the public interest. Citizens are also more likely to support minority rights because they cannot be certain whether they or their families will be in the majority or minority in the future.

After discussing the desirable process for constitution making, the book then shows that the enactment of the US Constitution largely tracked that process. The Constitution and its amendments were mostly products of the kind of stringent supermajority rules that generate beneficial entrenchments. Constitutional amendments must be approved by two-thirds of each house of Congress and ratified by three-quarters of state legislatures. The original Constitution was also a product of a double, if not triple, supermajoritarian process. Article VII expressly required nine of the thirteen states to ratify the Constitution before it took effect. Equally important, but less obvious, is that a supermajority of states also had to support the calling of the Philadelphia Convention and that the Constitution was endorsed by a very substantial proportion of the Convention’s delegates. It is these supermajority requirements that produced some of the most celebrated aspects of the American Constitution, such as the Bill of Rights and constitutional federalism. Both of these features might have been omitted had the new constitution merely had to secure a majority rather than a supermajority.

Originalist Interpretation

A last step to our argument is that beneficial judicial review requires a form of originalism. It was the meaning that the enactors believed the Constitution had—the original meaning—that defined the consensus that made the Constitution desirable. It was not the meaning favored by Richard Posner or Ronald Dworkin. Following a meaning that was not endorsed by the enactors would sever the Constitution from the process largely responsible for its beneficence.

Our description of the desirability of a constitution enacted by a supermajority not only helps to justify originalism, but also offers a critique of other interpretive theories, such as living constitutionalism, that give the Supreme Court substantial authority to generate constitutional norms. A comparison of constitutional lawmaking with case-by-case Supreme Court norm creation reveals what is wrong with such Supreme Court-centered theories. First, only a very small number of justices generate norms through their decisions, but desirable constitutional lawmaking requires the broader participation of many. Second, the Supreme Court is drawn from a very narrow class of society: elite lawyers who then work in Washington. In contrast, supermajoritarian constitutional lawmaking enables participation by diverse citizens with a wide variety of attachments and interests. Constitutional lawmaking should be supermajoritarian, while the Supreme Court rules by majority vote. Perhaps worst of all, Supreme Court updating of the Constitution preempts the amendment process and redirects political energy from the rich deliberative process of constitution making that the supermajoritarian amendment procedure affords.

Our justification for originalism also dictates its methodology. The constitutional enactors voted to ratify the document based on their understanding of the text and how they believed it would be interpreted by subsequent generations. Thus, modern courts should interpret the Constitution using the same interpretive methods that the enactors would have used—a process we call original methods originalism. The normative reason for interpreting the Constitution using the methods the enactors would have employed is that the meanings these methods generate were used to evaluate the constitutional provisions and thus were crucial to obtaining the consensus that made the Constitution good.

This argument for the original methods approach is of major importance to originalism because it shows that the original interpretive rules are integral to originalism. Discarding these rules severs the connection between the document that existing judges implement and the document passed by a consensus of past enactors. To embrace originalism without embracing the enactors’ interpretive rules is like trying to decode a message using a different code than the authors of the message employed.

Original methods originalism also bears on a contemporary debate among originalists—the question of whether construction is a legitimate part of originalism. Adherence to the theory of construction is a central part of what is sometimes called the new originalism, but which we believe is better termed constructionist originalism. Constructionist originalists believe that original meaning controls the interpretation of provisions that are not ambiguous or vague, but that constitutional construction provides judges and other political actors with discretion to resolve ambiguity and vagueness based on values not derived from the Constitution. Under our view, construction based on extraconstitutional values would be legitimate only if the original interpretive rules endorsed construction. But we find no substantial support for constitutional construction, as opposed to constitutional interpretation, at the time of the Framing or even at the time of subsequent amendments. Rather, the evidence suggests that ambiguity and vagueness were resolved by the enactors and their generation by considering evidence of history, structure, purpose, and intent.

Dissolving the Dead Hand Through the Equality of Generations

Our supermajoritarian theory also provides an answer to the complaint that, under originalism, the dead hand of the past rules the present. We argue that each generation largely has equal formal authority to entrench its political principles into the Constitution. The original Constitution came into being through stringent supermajority rules, and each generation can amend the Constitution through similar, although not exactly the same, rules. Thus, the Constitution is not ruled by a dead hand but instead by a generationally fair procedure that allows a consensus of any generation to enact provisions. The formal equality of the generations means that the constitutional amendment process is essential to a desirable constitution and to a normatively attractive originalism.

But one of the main contributions of the book is to show that there also can be no effective amendment process without originalism. Without originalism, constitutional change can occur through other means. As a result groups will transform the Constitution without amending it—by, for instance having justices appointed who will revise the Constitution to reflect their own values. Such alternatives ultimately eviscerate the amendment process. For example, the New Deal produced no constitutional amendments despite its enormous popularity because the Supreme Court revised the Constitution and made such amendments unnecessary.

Proper constitutional interpretation and a vigorous constitutional politics thus march under a single banner: no originalism without the amendment process and no vigorous amendment process without originalism. We the People of each generation can effectively contribute to our fundamental law, only if We the Elite Lawyers do not usurp that process by continually changing the Constitution in the supposed name of the People.

The Exclusion of Blacks and Women

Our theory also responds to the complaint that the exclusion of African Americans and women from much of the constitution-making process undermines the case for originalism. While we ultimately reject this critique, we believe it is the most serious of all criticisms of originalism. Thus, it is all the more surprising that no previous defense of originalism has seriously grappled with it.

In fact, it is our explanation of the characteristics of a good constitution that underscores the potential power of this critique. The exclusion of African Americans and women goes to the heart of how supermajority rules produce a good constitution. The constitutional enactment process depends for its desirability on representation of the entire population. Supermajority rules have the virtue of creating consensus solutions, but if a class of voters are excluded from the process, their absence casts doubt on the existence of a consensus. The supermajoritarian process is supposed to help protect minorities, but it has difficulty doing so if those minorities cannot participate.

We develop a theory of supermajoritarian failure to address this issue. The mere existence of a flaw in the supermajoritarian process does not necessarily mean that originalism is not the best interpretive rule, any more than the mere existence of a market failure means that government regulation is superior to the market outcome. Interpretive theory has too long been under the grip of a nirvana fallacy.

One must instead examine the costs and benefits of following originalism with the other alternatives in light of the failure. There are three conceivable responses to supermajoritarian failure. First, one can dispense with the existing constitution and attempt to establish a new one. Second, one can simply apply the original meaning of the imperfect constitution, even though it has defects. Third, one can purport to apply the imperfect constitution, but then selectively depart from that constitution in an effort to correct it, such as when judges depart from the original meaning through interpretation.

We compare these three alternatives. Dispensing with our existing constitution is a drastic alternative that is not justified for the United States because any defects inthe US Constitution due to the previous exclusion of blacks and women are less costly than the burden of dispensing with the document and attempting to create one of greater desirability. Very few scholars or politicians have ever argued for such a solution. Correcting these failures through judicial interpretation is also generally problematic because such judicial correction requires substantial discretionary decisions that have the potential to unravel a constitution. Justifying such correction would require very significant defects.

Happily, subsequent generations have, through the amendment process, corrected the most obvious and worst consequences of the exclusion of African Americans and women. The original supermajoritarian failure has been followed by supermajoritarian corrections in the form of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. In light of these corrections, we argue that further judicial correction has more costs than benefits. Originalism remains the best theory of constitutional interpretation for our supermajoritarian constitution.

The test of a compelling theory of originalism is whether it meets the salient objections that have accumulated to this venerable theory over many years of disputation. We believe our theory meets these objections better than others through its focus on the good consequences of following a good constitution produced by a good constitution-making procedure.