This Friday (April 11) USD Law School and the Center for the Study of Constitutional Originalism will host a roundtable on Originalism and the Good Constitution by John McGinnis and Michael Rappaport (Harvard Univ. Press 2013).
Our outstanding line-up of participants includes: Vikram Amar (UC Davis), Stephen Gardbaum (UCLA), Bernadette Meyler (Stanford), Robert Nagel (Colorado), Robert Pushaw (Pepperdine), Lawrence Rosenthal (Chapman), and Amanda Tyler (Berkeley), as well as USD’s Larry Alexander, Steve Smith, Laurence Claus, Don Dripps, and Maimon Schwarzschild. (And also me, and the authors).
In a few posts, I’ll offer some thoughts about the book — initially some very favorable ones, with perhaps some skepticism later.
To begin, I like that McGinnis and Rappaport frame the core question of constitutional adjudication as a choice among (a) originalism, (b) a “living constitution,” or, as they frequently call it, “judicial updating”, or (c) judicial deference to political branches. (They don’t do so expressly at the outset, which might have been better, but the comparative evaluation runs throughout the book.)
I think this is the right way to think about it. First, these are the three basic families of constitutional interpretation. Essentially everyone’s approach is a version of one of these, or a combination of them. (Some might say that adherence to precedent is a fourth, but I disagree; each of these approaches must decide how to deal with prior mistaken decisions, but adherence to precedent can’t stand alone as an interpretive theory because precedent does not decide many important cases).
Second, I like McGinnis and Rappaport’s phrase “judicial updating” (and I wish they had always used it to the exclusion of the living constitution). The living constitution is a unfortunate metaphor because it masks what is really happening in non-originalist constitutional adjudication: judges changing the meaning of the Constitution to suit modern circumstances. “Judicial updating” captures the process exactly, and puts the spotlight on judges as the agents of constitutional change. (To be sure, the Constitution is changed by other actors as well, including the executive, but in the modern U.S. system the judiciary is the primary agent). Further, “judicial updating” captures the common element of a wide range of non-originalist theories of adjudication, including process-based theories, moral rights theories, pragmatic approaches, and common-law constitutionalism. Though very different in their prescriptions, they share the central idea that judges should bring the Constitution into line with modern values and circumstances.
Third, McGinnis and Rappaport see the choice among these three approaches as a normative choice. I agree. I don’t think anything compels any particular choice; the question is which will produce a better constitutional system. In particular, I don’t think that originalism can claim our allegiance simply from the way the Constitution was enacted, or what its ratifiers intended. Thus, the book’s project — to show why originalism is the best way (in terms of modern outcomes) to interpret the Constitution — frames the question exactly right.
And finally, there’s this challenge (laid down on p. 205): “Living constitutionalism, in contrast [to originalism], has no plausible theory of why its process of constitutional interpretation likely leads to good results.”
Again, whether or not there is a response to this challenge, it seems exactly the right way to think about about it. (And of course, the question for me — or anyone — isn’t whether judicial updating would be the best approach if I were the judge, but whether judicial updating is the best approach when the judge is as likely to be someone with opposite political and judicial intuitions from me).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.