Our Normative Argument For Originalism

There are a number of ways of attempting to justify following the Constitution’s original meaning.  Some people believe that originalism constrains judges.  Others see the Constitution as the choice of the people under a popular sovereignty view.  We seek to justify following both the Constitution and the original meaning based on the normative desirability of the Constitution.  If the Constitution is a good one, then good consequences will result from following it.

But we do not base our normative argument simply on the assertion that the Constitution is a good one.  Instead, we believe that the goodness of the Constitution in a pluralistic society can also be seen though the method for enacting it.

We can summarize our argument in three simple propositions.  First, stringent supemajority rules provide the best way to make a national constitution.  Second, the United States Constitution was enacted mainly under such rules.  Third, it is the original meaning that was enacted under those supermajority rules and therefore it is that meaning that should be followed today.

1.  Let us expand on each of these points. First, relatively stringent supermajority rules will likely produce a good constitution and there is no other superior method.  As with a criminal trial, there are strong arguments for accepting its results.

We can see the virtues of a supermajoritarian constitutional enactment process by contrasting it with majority rule.  While something close to majority rule is generally the best approach to ordinary legislation, permitting a majority to entrench constitutional norms would be problematic.

First, because entrenched norms cannot easily be eliminated, controversial entrenchments can be extremely divisive and partisan.  Supermajority rules, in contrast, screen norms for substantial consensus and bipartisan support.  The resulting consensus creates legitimacy and allegiance as citizens come to regard the Constitution as part of their common bond.

The long-term nature of constitutions also reduces the likelihood that legislative majorities will enact desirable provisions.  Individuals are too disposed to believe that current trends will continue.  Hence, housing bubbles float ever upward until they don’t. Supermajority rules compensate for this deficiency by restricting the agenda of serious proposals, thereby encouraging richer deliberation about the Constitution.

Supermajority rules compensate even more powerfully because a strict supermajority rule for passage and repeal of constitutional provisions improves their quality by helping to create a veil of ignorance.  Because proposals entrenched under supermajority rules cannot be easily repealed, citizens and legislators cannot be certain how the provisions will affect them and their children in the future.  Hence they are more likely to consult the interests of all future citizens—the public interest.

This veil of ignorance creates very substantial real world benefits.  Take freedom of speech.  It is more likely to be supported when individuals cannot be sure whether they or their children will want to criticize the government.

Supermajority rules also generate constitutions that are more likely to protect minorities.  Under supermajority rules, a minority is more likely to be able to block a constitutional provision that does not protect its interests.  Religious freedom, for example, is more likely to be the result of a supermajoritarian enacted constitution.

2. Second, the Constitution and its amendments have been passed in the main under appropriate supermajority rules.  The Article V amendment process is stringently supermajoritarian and so was the process by which the Constitution of 1789 was enacted.   While there is one significant way in which those supermajority rules were not appropriate—the exclusion of African Americans and women – this supermajoritarian failure has been followed by supermajoritarian correction in the form of the 13th, 14th, 15th and 19th Amendments, which has moved the country towards equal voting and civil rights.

Thus, the supermajoritarian ratification process was the big bang of our Constitutional universe – bringing into effect the key elements of a document admired around the world.  To secure ratification in the necessary nine states, the nationalists had to compromise with those favoring state rights.  That need to compromise generated constitutional federalism and the Bill of Rights, which probably would not have been enacted under a majority enactment provision.

3. The third step to our argument follows directly from the first two.  The original meaning should govern because it was that meaning that passed through the supermajoritarian consensus that makes constitutional provisions likely to be desirable.  It was the original meaning that made the enactors think these provisions were good and on which they voted to make them the fundamental law.