Northwestern University Law Review
originalism, Constitution, supermajoritarianism
In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core of their argument is the claim that the procedures of supermajoritarian entrenchment will achieve desirable constitutional provisions and results; I contest this proposition. Finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime. In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention. It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.
Ethan J. Leib,
Why Supermajoritarianism Does Not Illuminate the Interpretive Debate between Originalists and Non-Originalists, 101 Nw. U. L. Rev. 1905
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/84