A Pragmatic Defense of Originalism
McGinnis, John O., Rappaport, Michael B., Harvard Journal of Law & Public Policy
Originalism and pragmatism are uneasy companions. This Essay will attempt to make them friends. The usual view is that pragmatic interpretation has the essential virtue of ensuring that the consequences of legal decisions will be good. (1) Originalism, in contrast, is thought to focus on fidelity to the past and therefore to permit the Court to reach undesirable, outdated results. (2) This Essay argues that originalism, although it does require judges to focus on the past, actually produces desirable rules today and, further, that originalism is the genuinely pragmatic way to interpret the Constitution.
Originalists largely have failed to meet pragmatic objections. The argument that judges should be originalists simply because that is what the Framers intended is not only circular, but fails to offer any assurance that good consequences attend originalism. The argument that originalism advances democracy seems weak and undeveloped, because originalism sometimes requires judges to strike down a result of the democratic process when statutes or executive actions conflict with the original meaning of the Constitution. (3) Finally, although the argument that originalism offers clearer rules to constrain judges than other interpretive approaches contains some truth, that alone is not enough to sustain the case for originalism. (4) The benefits of judicial constraint are limited if judicial decisions, despite their non-discretionary nature, still impose substantial harms. Conversely, if constraint is the overriding objective, non-originalist doctrine may sometimes provide more constrained rules than the original meaning. (5)
Pragmatic interpretation--which is usually thought to involve judges deciding particular cases based on their policy consequences--faces severe problems as an approach to resolving cases. People disagree about whether the consequences of particular decisions are good or bad. If the Constitution is to provide a framework for governance, it cannot simply replicate these disagreements. (6) Or, to put the objection to pragmatic constitutionalism in pragmatic terms, if a constitution is to have an independent settlement function in our polity--one that promotes the important ends of political stability, liberty, and prosperity--it cannot depend on judges deciding the same issues that are endlessly politically disputed. Moreover, judges seem a curious group to interpret the Constitution if consequences are key. As well-respected as its members may be, the Supreme Court is still a small and insulated group of legal experts who lack the institutional capacity or electoral accountability for evaluating policy consequences. (7)
Originalism can be given a strong pragmatic justification by focusing on the process by which constitutional provisions are created. Provisions created through the strict procedures of constitutional lawmaking are likely to have good consequences. Sustaining these good consequences, however, depends on adhering to the Constitution's meaning when it was ratified. Justified in this manner, originalism allows judges to achieve good consequences through formal legal interpretation without making policy case by case. In a paper of this brevity, we cannot provide exhaustive support for this position, but this Essay will sketch the main elements of a pragmatic defense of originalism. Because such defenses of originalism have been neglected, this Essay strives to encourage a broader debate about the consequences of originalism and other interpretative methodologies.
I. SUPERMAJORITY RULES AND DESIRABLE CONSTITUTIONAL PROVISIONS
This Essay's pragmatic argument for originalism can be briefly summarized. First, desirable, entrenched laws should take priority over ordinary legislation because such entrenchments operate to establish a structure of government that preserves democratic decision-making, individual rights, and other beneficial goals. Second, appropriate supermajority rules tend to produce desirable entrenchments. …