Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
Over at his blog, Tim Sandefur asks some questions about my new book with John McGinnis, Originalism and the Good Constitution. While I can’t answer all of his questions in a single post, let me address his first two basic points. Start with his first point:
What, then, do we do about existing precedent that diverges from the original meaning? A die hard Originalist might say, Jettison this precedent. But Rappaport and McGinnis don’t. They argue that where precedent diverges from the original meaning, we should continue to follow such precedent if overruling it would impose “enormous costs,” and where the existing precedent is “entrenched,” meaning that a strong consensus supports that precedent today.
My question is this: this escape hatch from the apparent requirements of Originalism is not based on anything intrinsic to the Originalist commitment. It’s ordinary cost-benefit analysis, and notably contemporary in its focus. What connection is there between the Originalist notion of fidelity to the original language, and this apparent permission to escape from that commitment?
In our view, the original meaning of the Constitution allows precedent. It does not, for the most part, specify what that precedent is. Instead, it treats precedent rules as a matter of common law that is revisable by congressional statute. Since precedent rules can be enacted by statute, we discuss what we believe would be the best precedent rules based on our preferred normative approach – welfare consequentialism (a form of utilitarianism). We do not justify this precedent approach based on the Framers’ values, but there is no need to do so. Ordinary legislation today does not have to follow the Framers’ view about what is good legislation (so long as it is constitutional). Similarly, precedent rules do not have to follow the Framers’ view about precedent.
Now consider his second question. He writes: In a Northwestern Article, McGinnis and Rappaport
argue in favor of Originalism, not from the premise that we’re obligated to follow the original meaning, but because doing so produces the best results, overall. They are therefore not really categorically distinct from their Living Constitution opponents, but instead stand in relation to those opponents as the Rule Utilitarian stands in relation to the Act Utilitarian. The Living Constitutionalist says to reach a decision based on the best outcome—like the Act Utilitarian—while Rappaport and McGinnis say to follow an interpretive methodology that will tend to reach the best outcomes—like the Rule Utilitarian. They aren’t really normative originalists at all. My question: is that correct?
The answer is that we are originalists, but we seek to justify that originalism with a normative argument. I don’t really understand what Sandefur means by being a real “normative originalist.” You might favor following the original meaning, because you believe it is the law; or because you believe it promotes justice; or for a variety of other reasons. But then you favor the original meaning for a reason, and that reason is your normative premise. For us, our normative premise is welfare consequentialism and that is how we justify following the original meaning.