In response to: Originalism and The Good Constitution: A Discussion
John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press. What follows is a commentary on this essay, not the book.
McGinnis and Rappaport defend what they call “original methods originalism,” because it connects directly to the concept of a good constitution and because its advances the welfare of present day citizens. It does so, they argue, by generating constitutional interpretations that have better consequences than non-originalist theories. We typically think that non-originalists such as Stephen Breyer make consequentialist arguments, but McGinnis and Rappaport argue that the faithful interpretation of the Constitution according to its original meaning will produce better consequences than Breyer’s individual calculus of what is best for society (or the calculus of a majority of the Court, for that matter); it does so, because it is based on upholding our good Constitution and its amendments that supermajorities have enacted.
This essay and the book it describes develop a normative defense of originalism that is not tied to any political philosophy. Their arguments are interesting, powerful, intelligent, and, dare I say, original. They will contribute greatly to the ongoing debate over originalism. They will persuade many, because they argue syllogistically, and as Antonin Scalia and Bryan A. Garner argue in Making Your Case: The Art of Persuading Judges, “the most rigorous form of logic, and hence the most persuasive, is the syllogism.” Their central argument can be expressed as follows. Major premise: Appropriate supermajority rules are the most sound method of producing desirable constitutional provisions establishing a structure of government that preserves democratic decision-making and protects individual rights (i.e., they are the most sound method of producing a good constitution). Minor premise: The Constitution and its amendments have “in the main” been drafted and ratified under appropriate supermajority rules. Conclusion: The Constitution as amended is desirable. And, because it is desirable, because for it to have been enacted and subsequently amended under its appropriately stringent supermajority rules has required the emergence of a substantial consensus of our diverse society that they are desirable, judges must interpret them based on their original meaning inasmuch as a supermajority of the drafters and ratifiers used that meaning when they decided to enact these desirable provisions.
Scalia and Garner are quick to point out that advocates must establish the truth of both their major and minor premises. McGinnis and Rappaport quite ably defend their major premise that there is no superior method of producing a good constitution.
They certainly make the case for why supermajority rule is superior to majority rule when it comes to creating constitutional provisions. However, they may be somewhat too sanguine in their faith in supermajority rule when they argue that it encourages a nation to make good long-term decisions about constitutional change by creating a veil of ignorance about the future and by improving deliberation. They correctly note that, because constitutional changes adopted under supermajoritarian rules cannot easily be repealed in the future, those who draft and ratify these changes cannot be certain how they will affect them and their children and will therefore be likely to consult the interests of all future citizens, i.e., the public interest, when deciding whether to support them.
Fair enough, but, as we all know, supermajority rules do not invariably improve deliberation. Consider, for example, the failure a century ago of the eastern establishment Republicans to use the supermajority rule to resist the adoption of what they considered the wrong-headed Sixteenth Amendment. Rather than fight on principle and refuse to vote for it, they acquiesced in its adoption, but only after they had slipped in what they believed was a poison pill that would assure its defeat in the state legislatures; too clever by half, they added language allowing for the taxation of incomes “from whatever source derived,” convinced that the states would vote against an amendment that would potentially subject state and municipal bonds to federal taxation. The subsequent election of large Democratic state legislative majorities in 1912, ready and eager to ratify the Sixteenth Amendment because they were convinced that the Democrats who had also just won control of the Congress would exempt those bonds from taxation, showed that the Republicans were indeed operating behind a veil of ignorance about the future, but their actions can hardly be described as improving deliberation about the public interest.
Supermajority rules also do little to lift the veil of ignorance about the past. To ride one of my favorite hobbyhorses, consider the fact that the Seventeenth Amendment, replacing the election of the U.S. Senate by state legislatures with direct popular election of senators, was ratified by the states in less than eleven months. It was ratified quickly and by overwhelming numbers. Two statistics show how overwhelmingly: In fifty-two of the seventy-two state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all thirty-six of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from just two legislative chambers: 77 from the Connecticut House and 75 from the Vermont House.
The original mode of electing the Senate by state legislatures was intended by the framers to ensure the protection of states as states and to prevent Congress from trenching on what James Madison in Federalist No. 39 called their “residuary and inviolable sovereignty.” As Alexander Hamilton expressed it so well during the New York ratifying convention: “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.” He also declared: “Sir, the senators will constantly be attended with a reflection, that their future existence is absolutely in the power of the states. Will not this form a powerful check?” Nonetheless, supermajorities in the Congress and the state legislatures adopted and ratified the Seventeenth Amendment without any serious or systematic consideration of its potential impact on federalism. Almost no one (not even among the opposition) paused to weigh the consequences of the amendment on federalism.
Only three exceptions are apparent in the voluminous record of the efforts to secure direct election of the Senate that extended over a forty-year period. One was Representative Franklin Bartlett, a Democrat from New York, who argued powerfully and eloquently during the 53rd Congress that the interests of the states as states could only be preserved by keeping the senators as representatives of their state governments. He fully appreciated that “the Framers of the Constitution, were they present in this House today, would inevitably regard this resolution as a most direct blow at the doctrine of State’s rights and at the integrity of the State sovereignties; for if you once deprive a State as a collective organism of all share in the General Government, you annihilate its federative importance.”
The other two exceptions were in the Senate: George F. Hoar, a Republican from Massachusetts, and Elihu Root, a Republican from New York. On the Senate floor during the 53rd Congress, Senator Hoar defended indirect election of the Senate, declaring that the “state legislatures are the bodies of men most interested of all others to preserve State jurisdiction . . . . It is well that the members of one branch of the Legislature should look to them for their reelection, and it is a great security for the rights of the States.” And, in the 61st Congress, Senator Root argued against direct election of the Senate on the very same grounds – if the sovereignty of the states was to be preserved, the original mode of electing the Senate had to be preserved.
In his January 27, 1838, speech to the Springfield Young Men’s Lyceum, entitled “The Perpetuation of Our Political Institutions,” Abraham Lincoln worried that the founding principles of the republic were “fading” from view and would “grow more and more dim by the lapse of time.” Lincoln warned of the consequences: Those founding principles, he proclaimed, “were a fortress of strength; but what invading foemen could never do, the silent artillery of time has done; the leveling of its walls.” The ratification of the Seventeenth Amendment suggests that not even McGinnis and Rappaport’s reliance on supermajoritarian rule can raise the “veil of ignorance” of the past and defeat the “silent artillery of time.”
As I said, McGinnis and Rappaport are quite successful, if not entirely so, in defending their major premise. They are also quite successful in defending their minor premise, and that is critically important because, as Scalia and Garner point out, “there is much to be said for the proposition that ‘legal reasoning revolves mainly around the establishment of the minor premise.’” Their minor premise is that the Constitution and its amendments have “in the main” been drafted and ratified under appropriate supermajority rules. They succeed, however, only because of their inclusion of the phrase, “in the main.”
McGinnis and Rappaport adroitly argue that the supermajority rules of the Constitution allow each generation to amend the Constitution to entrench its political principles and that this “generationally fair procedure” allows a consensus of any generation to enact changes, thereby contradicting the critics of originalism who argue that it is wrong for the living to be governed by the dead hand of the past. They also explain why the Constitution’s supermajority rules can be used to parry what they concede is the most serious of all criticisms of originalism, i.e., for the Constitution to be good and for judges to be bound by its original meaning, it must be the product of a consensus of the entire population, but the supermajoritarian rules that produced the consensus that enacted the original Constitution and its initial amendments excluded African Americans and women from participation. However, as they nicely point out, despite this “original supermajoritarian failure,” subsequent generations made “supermajoritarian corrections” in the form of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments.
But, to return to their phrase, “in the main.” McGinnis and Rappaport acknowledge the Supreme Court, guided by non-originalist theories, exercises “substantial authority to generate constitutional norms,” i.e., to amend the Constitution, and it does so by majority vote. This departs from their claim that the Constitution and its amendments are good and desirable because they have been enacted by a consensus of the entire society formed according to supermajoritarian rules, not by a simple majority vote of “elite lawyers” on the Supreme Court. And, they note, when the Supreme Court thereby updates the Constitution, it preempts the amendment process and deprives the public of the benefits of the “rich deliberative process” afforded by the supermajoritarian requirements of Article V.
Earlier in their essay, McGinnis and Rappaport explain why permitting a majority to “entrench” constitutional norms is problematic. It is no less problematic when done by a majority of justices. Happily, however, the Constitution provides a solution, but only if the Congress would act. As Hamilton pointed out in Federalist No. 80: “If some partial inconveniences should appear to be connected with the incorporation of any of [the powers of the judiciary] . . . into the plan,” “it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”Under the powers assigned to it in Article III, § 2, Congress could regulate the appellate jurisdiction of the Supreme Court and require that there be a supermajority of the justices (perhaps 2/3s, perhaps even more) to invalidate a federal or state law. (I very much doubt, however, that McGinnis and Rappaport would find such a supermajority rule to be “appropriate,” given their commitment to supermajoritarian rules that result in a society-wide consensus.)
Congress has been as reluctant to exercise its constitutionally authorized power to regulate the Court’s appellate jurisdiction as it has been to make exceptions to it. It has also been reluctant to unleash an altogether “appropriate” supermajority rule for the public to employ. Article V of the Constitution provides two ways by which amendments can be proposed to the states for ratification. The first way is approval by two-thirds of each house of Congress. The other way, never used, is by a convention called into existence by two-thirds of the state legislatures. Amendments that would infringe on congressional prerogatives (think spending caps or term limits) or that would return greater power to the states inevitably fail for want of a two-thirds vote, as Congress acts to preserve its power. Efforts by state legislatures to call for a convention to rein in what they consider congressional excesses are stymied by Congress’s failure (or, perhaps a better word, refusal) to pass legislation to implement this second way by spelling out, for example, the manner of selecting and apportioning the delegates to such a constitutional convention, the place of holding such a convention, the rules of its proceedings, and the scope of its authority. Its failure to do so places state legislators behind a veil of ignorance where they fear that once a convention is called, there may be no way to confine its deliberations, and that such a convention may consider itself authorized to propose other amendments to the Constitution as well—or even to propose an entirely new Constitution organized on completely different principles. Congress has exploited this fear to prevent the emergence of a possible consensus to trim its wings that might be produced by this other “appropriate” supermajority rule.
Having established that supermajoritarian rules produce a Constitution that is desirable, McGinnis and Rappaport argue that that courts should interpret the Constitution using the same interpretive methods its enactors used. They call this “original methods originalism,” which seems very much like what I describe in my forthcoming book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration,  as Thomas’ “original general meaning” approach to constitutional interpretation. There are, of course, differences in their originalism: McGinnis and Rappaport find the Constitution desirable because of its “supermajoritarian genesis,” while Thomas does so because the principles of the Declaration of Independence underlie and infuse it.  Their goal, however, is not to persuade Thomas that their normative defense of originalism based on the Constitution’s supermajority rule should be his. Rather, their goal and, at the end of the day, their greatest challenge is somehow to reach, intellectually engage, and ultimately persuade to their way of thinking non-originalists who are convinced that, however desirable the Good Constitution might be, their vision of a good and ever evolving society is even better. Their goal is certainly ambitious and may be ultimately unattainable, but they deserve our sincere admiration and thanks for how well they are fighting this noble fight.
 Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf/ Vintage, 2006).
 Antonin Scalia and Bryan A Garner, Making Your Case: The Art of Persuading Judges (St. Paul, MN, Thomson/West, 2008), p. 41.
 Ibid., at 42.
 Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001), p. 210.
 James Madison, Alexander Hamilton, and John Jay, The Federalist, ed. Jacob E. Cooke (New York: World Publishing Company, 1961), p. 256.
. Jonathan Elliot (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, 5vols. (Philadelphia: J. B. Lippincott, 1845). Vol. II, p. 306.
. Ibid., p. 317-18.
. Congressional Record, 53rd Cong., 2nd Sess., Vol. 26, 7774.
. Senator Hoar’s speech was printed as a Senate Document in 1906: “Speech by Senator George F. Hoar,” April 6-7, 1893, Senate Documents, 59th Cong., 1st Sess., No. 232: 22.
. Congressional Record, 61st Cong., 3rd Sess., 2243.
. Richard N. Current (ed.), The Political Thought of Abraham Lincoln (New York: Bobbs-Merrill, 1967), 20.
 Scalia and Garner, p. 42.
. TheFederalist No. 80, 541.
 There are substantial arguments to the contrary. See Grover Rees III, “The Amendment Process & Limited Constitutional Conventions,” Benchmark 2 (March-April 1986): 66-108. See also American Bar Association Special Constitutional Convention Study Committee, Amendment of the Constitution: By the Convention Method under Article V (Chicago: American Bar Association, 1974).
 Ralph A. Rossum, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (Lawrence: University Press of Kansas, 2014).
Adarand Constructors v. Peña, 515 U.S. 200, 240 (1994).
 John O. McGinnis and Michael B. Rappaport, Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013).