Originalism and the Good Constitution

by John O. McGinnis, Michael B. Rappaport

Overview

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

Product Details

ISBN-13:	9780674725072
Publisher:	Harvard University Press
Publication date:	11/01/2013
Pages:	312
Sales rank:	886,425
Product dimensions:	6.20(w) x 9.40(h) x 1.10(d)

About the Author

John O. McGinnis is George C. Dix Professor of Constitutional Law at Northwestern University.

Michael B. Rappaport is Hugh and Hazel Darling Foundation Professor of Law and Director of the Center for the Study of Constitutional Originalism at the University of San Diego.

Table of Contents

1 Originalism: Its Discontents and the Supermajoritarian Solution 1

2 The Nature of the Argument 19

3 The Supermajoritarian Theory of Constitutionalism 33

4 The Compliance of the US Constitution with Desirable Supermajority Rules 62

5 The Continuing Desirability of an Old Supermajoritarian Constitution 81

6 Supermajoritarian Failure, Including the Exclusion of African Americans and Women 100

7 Original Methods Originalism 116

8 Original Methods versus Constitutional Construction 139

9 Precedent, Originalism, and the Constitution 154

10 The Normative Theory of Precedent 175

11 Imagining an Originalist Future 197

Notes 209

Acknowledgments 285

Index 287

Editorial Reviews

This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time… A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore… This is the best book on originalism in a long time, and anyone interested in the subject should read it.

Volokh Conspiracy - Ilya Somin

Originalism and the Good Constitution is an impressive work, rich with interesting and intelligent arguments. In developing their normative argument for originalism, McGinnis and Rappaport stake out and defend various positions on contested points of originalist methodology. Their book will surely play a prominent role in the ongoing debate over originalism.

National Review - Ed Whelan

Originalism and the Good Constitution is a major contribution to constitutional theory that has no obvious substitute or counterpart. This book will be much noticed and much discussed as part of the growing debate over constitutionalism.

Gary Lawson

Originalism and the Good Constitution offers the most elaborate and coherent explanation and defense of originalism now available.

Choice - A. D. Sarat