McGinnis and Rappaport at the Volokh Conspiracy

This week John McGinnis and I are guest blogging at the Volokh Conspiracy on our new book, Originalism and the Good Constitution.  Each day we will be addressing a different aspect of the book — the normative argument, how to interpret the Constitution, precedent, and what an originalist world would look like.  Here is a short excerpt from our first post, which mentions  7 aspects of the book:

Our book presents a variety of new, inter-related ideas about originalism. . . .  First, the book provides a new normative argument for following the original meaning of the Constitution – one that roots its argument in a welfare consequentialist (utilitarian) theory and that focuses on the supermajoritarian method for enacting and amending the Constitution.  While this justification relies on value judgments, these judgments are not narrow ones, but ones that accommodate people of differing normative perspectives.

Second, the book presents a new approach to determining the original meaning of the Constitution – original methods originalism.  This approach asks interpreters to read the Constitution using the interpretive methods that the Framers’ generation would have applied.  We argue that this approach provides a more accurate method for determining the original meaning of the document.

Third, the book provides a new resolution of the so called dead hand problem, showing that each generation has the same formal opportunity to write its values into the Constitution.  While the first generation probably had more input into the overall Constitution as a practical matter, later generations derive more than compensating benefits from inheriting a desirable constitution.

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A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?