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Responding to Tim Sandefur

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.

Reader Discussion

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on March 27, 2014 at 17:15:38 pm

Mike:

You would at least concede that it is understandable that one could draw a concl;usion similar to Sandefuers that your argument can be construed to mirror that of the "Living Constitutionalists." I do not believe that you are advocating that; however, upon my first reading of essays by you and McGinnis that very same thought occurred to me. Since I also believe that there is a normative prescription embedded in the "penumbras" (just kidding!!!) of the constitution that is nopt too dissimilar to yours, I can accept the position - but others may not.
Perhaps, that is what it comes down to, after all. Many who think of the document as just that - a document - without any motivating principle(s) behind it may take issue with the normative consequences of such an approach. I think such an argument baldly stated, without any moderating limitations, may lead to such an erroneous conclusion.

take care
gabe

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gabe
on March 27, 2014 at 22:09:03 pm

Mike, your response to Sandefur, in this blog.
“We do not justify this precedent approach based on the Framers’ values … “A question arises, Mike, with your next sentence. “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.” Shall I understand this as “based on the Framers’ values”?
Then, you question Sandefur by what he means by being a real “normative originalist. Your reply is: “For us, our normative premise is welfare consequentialism and that is how we justify following the original meaning.”
Have you now moved into ‘your values’(so long as it is constitutional)?
I have a problem w/both Sandefur, and yourself, in this blog.
Sandefur never gave 'his position' of how he arrived at his questioning –he only questioned you.
My problem w/your answer, “For us, our normative premise is welfare consequentialism and that is how we justify following the original meaning.” Just what is “is welfare consequentialism”?
I have asked you personally in a number of blogs requesting whether you agree to “incorporation’” by the Supreme Court of the First Amendment’s religious clause – prohibiting the free exercise of religion.
Is this “welfare consequentialism”?
Respectfully, John

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John E. Jenkins
on March 28, 2014 at 16:31:33 pm

John: Without getting into details, there is a strong case for finding incorporation under the Privileges or Immunities Clause. I am therefore generally supportive of it). That is a question of original meaning. It does not follow from welfare consequentalism. The original meaning is the meaning of the document. Welfare consequentialism is a premise in a normative argument for why we should follow the original meaning.

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Mike Rappaport
on March 28, 2014 at 23:18:19 pm

Mike, I thank you for answering my comment to your blog. Yet, you have avoided my following question: “I have asked you personally in a number of blogs requesting whether you agree to “incorporation’” by the Supreme Court OF the First Amendment’s religious clause – prohibiting the free exercise of religion. “You have yet to reply to this particular question. Are you suggesting to me that “a strong case for finding incorporation under the Privileges or Immunities Clause? I am therefore generally supportive of it). That is a question of original meaning.” Are you suggesting to me that this is the answer, to me, respecting this question, above?
I have a, genuine, respect for your premise of “original meaning”; it is also my endeavor. I just do not want to read that you and John McGinnis agree to Supreme Court decisions to “prohibit the free exercise of religion”. It is my contention, and it will always be, that the First Amendment Religious clause is a “prohibition’ of federal law making, by any branch of the federal government
I would appreciate a candid response to this comment.
Respectfully, John

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John E. Jenkins
on March 30, 2014 at 15:13:06 pm

John, When I say that I am generally supportive of incorporation as stating the original meaning, that includes the Free Exercise Clause. The tougher argument is the Establishment Clause -- I don't have much of a position on this one. It depends on a variety of matters that are too complicated to get into here.

It is true that the First Amendment applies to Congress. But the Privileges or Immunities Clause protects against states the rights of citizens. So if free exercise would have been deemed a right of citizens, it would be protected by the 14th Amendment, even though the 1st Amendment only applies to Congress.

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Mike Rappaport
on March 30, 2014 at 19:09:08 pm

Mike, I thank you for your candid reply. Disappointed, but at least, now, I can understand, more clearly, our obvious differences.
Respectfully, John

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John E. Jenkins
on March 30, 2014 at 23:08:35 pm

Mike, your dialogue in this reply is misrepresented, and certainly not “stating the original meaning” of the 14th Amendment, or the First Amendments free exercise of religion being a ‘civil right’ of “Privileges or Immunities”. The free exercise of religion is “inalienable” thereby prohibited to federal law making.
1. “I don’t have much of a position on this one (The Establishment Clause). It depends on a variety of matters that are too complicated to get into here”. You mentioned the same position in your previous reply “Without getting into details…” What is wrong with details, and why you’re not understanding the dialogue (enumeration) of the Establishment Clause’s ‘prohibition’? I can.
2. “… When I say that I am generally supportive of incorporation…” Is “incorporation” a legislative term compared to “amendment”, or a legal term as “due process of law”?
3. “So if free exercise would have been deemed a right of citizens, it would be protected by the 14th Amendment, even though the 1st Amendment only applies to Congress.” As a scholar, your are certainly aware of the term “rights” as both being “inalienable” and “civil” – which are not the same. The federal government can control the last, but is “prohibited” to control the first .

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John E. Jenkins

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