In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes:
I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution.
This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by supermajority decision-making processes. On average, constitutional rules supported by supermajorities are likely to be better than those produced by judges using various living constitution methodologies of interpretation or those produced by normal political majorities.
A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore. These include the reality that most blacks and virtually all women were excluded from the political processes that produced the original meaning of the most important parts of the Constitution, the claim that Brown v. Board of Education is incompatible with originalism, and the problem of how to deal with decades of accumulated nonoriginalist precedents. To each of these dilemmas, the authors provide insightful answers. For example, they point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the 14th and 15th amendments between the 1880s and 1950s. Even if integrated public schooling was not in and of itself required by the original meaning, the protection of black voting rights and a wide range of civil rights clearly [...]