Originalism and the Good Constitution

My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November).

The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.

While the book offers this new argument, it does quite a bit more, exploring various issues of originalism based on the book’s overall theory. First, the book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution. This interpretive approach is defended both as the most accurate way of determining the Constitution’s meaning as well as the method that will lead to the best consequences.

Second, the book presents a theory of precedent consistent with constitutional originalism. In contrast to some commentators who argue that originalism does not allow precedent, the book argues that the original meaning permits precedent as a matter of common law revisable by congressional statute. The book also presents the beginnings of a normatively attractive approach to nonoriginalist precedent – an approach that explains when it is desirable to follow such precedent and when it is not.

Third, the book focuses upon the relationship between originalism and constitutional amendments. In particular, it argues that nonoriginalism undermines and supersedes the constitutional amendment process and that the reason why so few important amendments have passed in the last 50 years has been the growth of nonoriginalism. If we are to enjoy the benefits of constitutional amendments, then the courts must refrain from updating the constitution and instead follow the original meaning.

Finally, the book explores the question of originalism and the historical exclusion of blacks and women from the constitutional enactment process. It discusses the problems for the desirability of the Constitution from that exclusion and argues that the problems it created have largely been remedied through subsequent constitutional amendments.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. gabe says

    Mike:
    This sounds promising!
    You say, “The book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution.” Now this would certainly seem a more appropriate means of determining meaning and intent, as well as application of the Constitution as opposed to reaching under long Black Robes and conjuring up penumbras of enumerations. In short, we have been plagued in our understanding of our foundational documents and of ourselves by recourse to far too many “legalisms.”

    I have always thought that most attempts at understanding the Constitution miss the most salient point. The document was written for an audience. That audience was not comprised exclusively of lawyers, philosophers and other intellectuals. While it may have been drafted by such types, it nevertheless had a different audience in mind – the people and their elected representatives whose backgrounds encompassed a wide range of skills, inclinations, literacy and learning and whose consent was required. Surely the drafters were aware of this. Was this not the purpose of the Federalist Papers, to garner support?
    Remembering that ratification was not assured, it was incumbent upon the drafters that they make it susceptible to common understanding and debate.
    Given this, can one seriously argue that the drafters buried “penumbras, emanations, etc” into a fairly “plain-text” document?
    Your precis’ of your book seems to offer a possibility of sound interpretation and I would hope that the proposed method would include a consideration of the “common understanding” that the average legislative representative and the people had of the text.
    I believe any method that does not include an appreciation of the drafters appeal to its unique audience, a rather significant audience in that they alone could approve it, may ultimately lead us back to further legalistic butchery of a fairly straightforward document. (See Tillmans treatment of the origination Clause @ Originalism Blog) (just another plug for a great site, guys).
    Anyway, you have piqued my interest and it goes on to my growing reading list.

    take care
    gabe

  2. John Ashman says

    “The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. ”

    Ugh. That’s an awful argument. We should follow it, because it’s the law and because there’s a mechanism to change it. If the Constitution had no mechanism for change, no one could be expected to follow it forever. Good or bad, it doesn’t matter. We have the power to change it, so if it’s good or bad, it’s our own fault, but regardless, it’s the law.

  3. gabe says

    For those who are interested, here is a rather interesting review of the book:

    http://www.nationalreview.com/bench-memos/361398/mcginnisrappaports-originalism-and-good-constitution-part-1-ed-whelan
    AND
    http://www.nationalreview.com/bench-memos/361501/mcginnisrappaports-originalism-and-good-constitution-part-2-ed-whelan#!
    Whelan says in Part I:
    To state my point more affirmatively: I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution.
    That normative argument in turn builds on Solum’s argument that the semantic content of any clause of the Constitution is the clause’s original public meaning.)

    Yippee! At last, we may include the Costitutions audience in our attempt to interpret it.

    take care
    gabe

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