The Supermajoritarian Case for OriginalismMike Rappaport

My piece (with John McGinnis) arguing for originalism based on the supermajoritarian enactment and amendment of the Constitution has now been finalized and is available here at SSRN.   Here is the abstract:

In this brief essay, we offer a new defense of originalismthat focuses on its consequences. We argue that interpreting the Constitutionaccording to its original meaning is more likely to produce good results todaythan non-originalist theories of interpretation. We thus offer a defense oforiginalism that transcends previous arguments that originalism is to bepreferred because of the constraints it imposes on judges or its consonancewith the rule of law.

Our argument proceeds in four steps. First, entrenched laws that are desirableshould take priority over ordinary legislation, because such entrenchmentsoperate to establish a structure of government that preserves democraticdecisionmaking, individual rights, and other beneficial goals. Second,appropriate supermajority rules tend to produce desirable entrenchments. Third,the Constitution and its amendments have been passed in the main underappropriate supermajority rules and thus the norms entrenched in theConstitution tend to be desirable. Finally, this argument for the desirabilityof the Constitution requires that judges interpret the document based only onits original meaning because the drafters and ratifiers used only that meaningin deciding to adopt constitutional provisions.

I plan to blog about some aspects of the piece in the future,  but in the next couple of days I will be away at a conference (on what other than supermajority rules).