Justifications of Originalism Mike Rappaport

The debate sparked by Larry Solum on originalism has now expanded.  See here for various links.  Brian Leiter has repeated his previous claim that originalism has no theoretical justification.  His post had responded to my claim  that the supermajoritarian basis of the Constitution provides a justification for originalism.  Based on an earlier article with John McGinnis, I argued: 

Laws that must pass under a strict supermajority rule are apt to bebetter than laws passed by majority rule. While the specific effects ofsupermajority rules depend on the type of laws being passed, thecircumstances, and the model of the legislative process that oneemploys, one can make certain generalizations. First, thatsupermajority rules require the approval of a greater percentage of thelegislature operates to protect minority interests from beingexploited. Second, the greater support required under supermajorityrules also means that laws must in general produce significant publicbenefits in order to pass.  Whilesupermajority rules don t make sense in all circumstances, they aredesirable when applied to the passage of constitutional norms that willbe entrenched against change by ordinary legislative majorities.

The supermajoritarian process for enacting constitutional normsprovides a reason why constitutional provisions should be preferred toordinary statutes passed under majority voting rules: theconstitutional norms are likely to be of higher quality than ordinarylegislation. The supermajoritarian process also suggests that theConstitution should be given its original meaning: it is only theoriginal meaning of the provisions that would have been reviewed by theparticipants in the strict supermajoritan process.

In the end, then, originalism is justified because it enforcesprovisions enacted in a process that suggests they will be desirableand assigns to judges the task of enforcing, not making, the law.

Brian challenged the argument on two grounds. 

First . . .  at best it shows only that super-majoritarian norms are more likelyto be normatively superior, not that they actually are.  Second, it is too weak,because the superiority of one set of norms to another set of norms isinsufficient to show that the norms, in fact, are authoritative, i.e.,are the kind that will make it more likely that we will do what wereally ought to do.  Super-majoritarian norms may be better, ingeneral, than norms enacted other ways; that is still compatible withall such norms (even as originally understood) having no justifiedclaim of authority over us.

While these objections are perhaps understandable given the brief summary I gave of the argument, they are not problems for our overall argument.  First, Brian’s arguments are framed in terms of Raz’s service conception of authority, a conception we do not employ.  Instead, our arguments are essentially consequentionalist ones that claim that we are better off if we follow the original meaning of a Constitution enacted through supermajority rules.  Second, Brian’s claim that supermajority rules produce desirable norms only probabilistically is not a problem.  In the real world, most procedures cannot guarantee  good results, but that does not mean they are not desirable.  Criminal trials don’t always reach the right result, but that does not mean they are not justified as producing, on average, better results than alternative systems.  Third, Brian’s claim that  the fact that supermajority rules produce better results than majority rule does not mean they produce desirable results is true, but is not a problem for our argument.   I said that supermajority rules produce more desirable results than majority rule to justify displacing majority enacted statutes, but our claim (stated in the last line of the excerpt above) is that supermajority rules produce desirable norms, not just ones better than majority rule. 

Finally, Frank Cross makes some interesting arguments, but there are straightforward responses to them in our theory as well.  But since this post is already long, I will just note that fact rather than giving the responses.