Originalism and the Good Constitution at the Cato Institute

Earlier this week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution.  The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center.  You can watch the video here.

Roger took issue with our book from a natural rights perspective.  He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy.  But I believe that Roger is mistaken.  The book’s approach is that we should read the original meaning of the Constitution in a straightforward way, without bringing in some external preference for democracy, as Robert Bork seemed to.  While Roger no doubt differs with us on the Constitution’s meaning, the book is not primarily about the specific content of constitutional clauses, but is instead focused on issues related to the normative defense of the Constitution, how one should determine its meaning, the role of precedent, and the importance of the constitutional amendment process.

Brianne adopted the approach of the Constitutional Accountability Center, which argues for an originalist methodology, but views many constitutional provisions as having abstract meanings that require modern judges to give them content.  But John and I are skeptical of this approach.  In our article, The Abstract Meaning Fallacy, we criticize a fallacy, that we associate with Ronald Dworkin and Jack Balkin, that concludes that constitutional provisions have abstract meanings without sufficiently considering the other possible meanings.  In particular, we believe that many constitutional provisions sound at first like they might have abstract meanings, but upon examination of the history turn out to have more concrete meanings.

Despite our differences with the commentators, we very much enjoyed the discussion and felt that it brought out many of the most important issues.