I listened in today to a Federalist Society Teleforum featuring Michael Rappaport and his coauthor John McGinnis discussing their theory of Originalism, set forth in their new book, Originalism And The Good Constitution (which I have not read). Unfortunately, it ran long, and I didn’t get a chance to ask my question. But I’m really curious to know their answer and I thought I’d ask it here, since readers might enjoy it as well.
Rappaport and McGinnis’s argument for Originalism seeks to show that the proper way to read the Constitution is to seek to understand its original meaning—its meaning at the time it was written—and that we are bound to that understanding as a matter of law. The alternative, of course, is Living Constitutionalism or other varieties of interpretation whereby judges interpret the Constitution in light of contemporary needs or values, which Rappaport and McGinnis find subjective and dangerous and so forth.
What, then, do we do about existing precedent that diverges from the original meaning? For example, existing Eleventh Amendment precedent, which simply bears no relation to what the Amendment actually says or meant when enacted. 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? Is it your view that the framers believed this was the proper approach, and that justifies such a cost-benefit analysis? Without some such connection, it seems arbitrary—it seems as though the argument is “follow original meaning…except when you don’t.”
Rappaport and McGinnis appear to have answered this question in an article in the Northwestern Law Review Colloquy, in an article entitled “A Pragmatic Defense of Originalism.” There, they 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. “Provisions created through the strict procedures of constitutional lawmaking are likely to have good consequences,” they argue. “Sustaining these good consequences, however, depends on adhering to the Constitution’s meaning when it was ratified. Justified in this manner, Originalism allows judges to achieve good consequences through formal legal interpretation without having to make policy case by case.”
This appears to say that Rappaport and McGinnis aren’t really arguing for Originalism, but for what they consider to be pragmatism—Originalism is only a useful tool for reaching the best results. 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? Or have I missed something?
Three follow-up questions: what about “precedents” other than court decisions? That is, what about precedents in political practice or mere habit? Do only Supreme Court precedents count? Rappaport and McGinnis don’t say so, and I see no reason why it should be so. Then what about social practices from time immemorial which (a) would impose enormous costs to change and (b) around which a strong consensus appears to have grown? For example, blue laws, or school segregation?
Second, what about desuetude? The law against adultery in Measure for Measure, for example? Or the Logan Act? Or the Privileges or Immunities Clause of the Fourteenth Amendment? In these cases the law or constitutional provision—which presumably originally satisfied Rappaport and McGinnis’ procedural criteria and are therefore more likely to be good laws—have nevertheless simply been ignored, flouted, or left silent for long periods of time. Does desuetude count as a “precedent”? If so, how do we know that that produces better outcomes?
Third, if my Rule Utilitarian analogy is correct, how do you respond to the typical objections to Rule Utilitarianism? Which are, that what constitutes the “rule” in question is an undefined category which can be stretched or cut arbitrarily—and that in the end, Rule Utilitarianism really ignores the important questions about what we’re obligated to do. To clarify: Rappaport and McGinnis tell the judge to follow the original meaning (except where path depenendence and entrenchment counsel otherwise) because that approach is likely to lead to the best outcome. So if I’m deciding Kelo v. New London, and I rule in favor of Susette Kelo, am I following the original meaning of the “public use” clause, and thus leading to the best outcome overall? Or am I making a value-based, contemporary decision that prevents rent-seeking and arbitrary deprivations of property, and that’s the best outcome? Or am I overthrowing entrenched existing precedent (which allows virtually any seizure of property sanctioned by the legislature), and this is a good outcome? Or is it a bad outcome? Or is overthrowing entrenched precedent a good outcome even if I am wrong on the merits, because it sparks a needed national debate on a subject the public has too long ignored? (Something some judges appear willing to do.) It seems that my decision could be characterized as following a large number of different kinds of interpretive “rules.” How then do I analyize the social consequences? And if I could somehow prove that Living Constitutionalism—or, heck, deciding cases by throwing dice—really resulted in a happier and more prosperous society than does Originalism, would that really persuade you to abandon Originalism? Or do you not think that there is some deeper reason why following the original meaning is an obligation to us?
I emphasize that these are not “gotcha” questions.