Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
Liberty Forum on Originalism and the Good Constitution
I wanted to remind readers of this past month’s Liberty Forum on the new book by John McGinnis and me, Originalism and the Good Constitution.
The first essay by McGinnis and me set forth the basic claims of the book.
Richard Epstein then wrote a critique here. Unfortunately, Epstein misunderstood our argument — assuming that we believe supermajority enactment rules always lead to good results, even if a class of voters, such as blacks, is excluded from the electorate. But as we stated in our original essay and pointed out in our response here, our argument is that only appropriate supermajority enactment rules lead to good results and such rules need to include all portions of the country. Still, Epstein’s piece did help to clarify certain aspects of our project.
Ralph Rossum also wrote a response here. While Rossum praised portions of the essay, he wondered about the desirability of the 16th and 17th Amendments, which he regarded as normatively questionable. We responded here, noting various problems with the pre-16th and 17th Amendment Constitution and reasons why these amendments reflected the values of a large portion of populace.
We want to thank both Epstein and Rossum for their comments and the Liberty Fund for providing a forum that allowed a productive exchange of views on our new book.