Public Choice Originalism

Two giants of the intellectual right died last year, Robert Bork and James Buchanan. The first will be forever identified with originalism and the second with public choice. The Law & Economics Center of George Mason Law School invited me and other scholars to commemorate their work and that of Armen Alchian, a fine economist and price theorist who also died in 2013.

Thinking about the contributions of Judge Bork and Professor Buchanan together helped me understand the strong relationship between the rise of public choice and rise of originalism. The public choice view provided support for a constitution with features that constrain ordinary politics, protecting key social institutions like rights, federalism and the separation of powers. Originalism provided a theory of interpretation that supports these constraints on democratic politics, preventing them from being eroded by the forces that would favor their erosion, according to the predictions of public choice itself. I thus decided to write about the relation in essay called: Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm.

Here is a bit from the introduction of the paper:

In this essay I explore the connections between public choice and originalism, arguing that public choice is crucial to development of the originalism both in its diffuse popular and more academic form. As Robert Bork’s famous article, Neutral Principles and Some First Amendment Problems, illustrates, originalism begins as a reaction to the Warren Court, but it is a reaction that largely accepts the primacy of democratic majoritarianism that had begun in the Progressive era. It is public choice more than any other theory of politics that loosens the straightjacket that majoritarianism has on constitutional theory. In its more diffuse form, public choice with its emphasis on the self- interested nature of politicians, the power of interest groups, and the pathologies of collective choice made majority rule less attractive. James Buchanan’s contribution with Gordon Tullock in The Calculus of Consent has particular relevance to originalism, because it decisively breaks from the idea that majority rule should be the presumptive norm in constitutional republics. If constitutions are best made by supermajority rules, as Buchanan and Tullock imply, originalism can be justified as a way of protecting the results of supermajoritarian constitutionmaking from change by either majorities or the peculiar submajorities that are comprised by the justices of the Supreme Court.

In particular, public choice is largely responsible for moving  the countermajoritarian difficulty, which dominated constitutional law for decades, from the center of constitutional theory except for many of those on the left-liberal side who remain committed to the Progressive Paradigm. If majority rule is not a privileged norm, enforcing countermajoritarian aspects of the constitution are not only unproblematic but in fact an essential aspect of constitutionalism. And thus many of the moves in constitutional theory that have been devised to meet or temper the countermajoritarian difficulty are solutions in search of a problem.

But every theory has problems it needs to solve. In my next post, I will outline four issues that an originalism informed by public choice needs to address.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Comments

  1. R Richard Schweitzer says

    This sounds to be of prospective interest, presuming that its considerations will include the impacts on individual liberty (the point of this blog); the freedom from and freedom to.

    Hopefully, if it is not too far into creation, it will include at least a “skeleton” delineation of the “Progressive Paradigm.”
    Meanwhile, back to review the February 2014 paper.

  2. gabe says

    I, too, look forward to the next essays.

    The excerpted paragraph for your article was rather helpful in understanding the value of public choice theory and supermajoritarianism. Well, at least for someone such as I – it provided a critical insight into what it attempts to do. So thanks.

    take care
    gabe

  3. says

    Professor McGinnis, John, I would like you to consider a condition problematic with “originalism”, and a second condition that solves certain problems for the protection of the Constitution, the States and the people’s rights– the BOR’s.
    I refer to the “second condition” firstly. The present practices of the Democratic Executive, and the complicit Democratic Party members of the Congress, who have exploited, with agreement, of, the usurpation of the Supreme Court’s constructions of the Constitution, since the early thirties.
    You appear to base your essay on the words of Borg, and Buchanan. “If constitutions are best made by supermajority rules, as Buchanan and Tullock imply, originalism can be justified as a way of protecting the results of supermajoritarian constitution making from change by either majorities or the peculiar submajorities that are comprised by the justices of the Supreme Court.” I do not disagree w/that statement, in part. But – you must further explain to the reader – just “how do you purpose to recover that which the Courts have usurped of the Constitution, and the States and the people’s rights under the BOR’s?. And, I must go one step further and ask, just why have you not mentioned usurpation and impeachment in this abbreviated essay. “Bad behavior” – is “Bad behavior”.
    “…the peculiar submajorities that are comprised by the justices of the Supreme Court.” As noted above is the main problem, including the Warren era, to the present. You remark, “James Buchanan’s contribution with Gordon Tullock in The Calculus of Consent has particular relevance to originalism, because it “decisively brakes “ from the idea that ‘majority rule’ should be the presumptive norm in constitutional republics.“ The problem w/that remark is “We the people” has always been the dominant preface to the Constitution – the States as Replicas (as well). Now, if “We the people” become the majority “of the progressive movement” – we are in deep “do-do”, and so goes our American founding heritage.
    I am not criticizing you, believe me. I am only offering to you another avenue to your present observations, and references. If you have some difficulty w/what I have commented here – I would certainly consider your reply. I look forward to your next post, (that) will outline four issues that an originalism informed by public choice needs to address.
    (My personal references are: Raoul Berger, and ED Whelan.)
    Respectfully, John

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