Originalism and the Good
Constitution
by John O. McGinnis
(Author), Michael B. Rappaport (Author)
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.
