Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-Originalists

Abstract

John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government. But they now go too far. In "A Pragmatic Defense of Originalism," they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. This most recent piece of their project simply does not work.

In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. 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. And, 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.