Professor Presents a New Defense of Originalism


The Federalist Society brought Professor John O. McGinnis of Northwestern Law back to his alma mater on Thursday, March 13 to present his forthcoming paper, offering a self-described “new defense of originalism,” for comment and critique by Professor Richard Fallon of HLS. McGinnis began his presentation by noting the major themes present in current defenses of originalism; namely that originalism best interprets what the founders meant, that it offers the most democratic means of constitutional interpretation, or that it is preferable because it offers clear rules for courts. In this summary McGinnis noted the shortcoming of each of these defenses, and that in the end a better defense is needed to show that originalism is not just an available method, but also that it is preferable based upon its consequences.

Professor McGinnis’ defense of originalism focused on the processes present in the shaping of the Constitution as well as in its updating; namely supermajority rules and provisions and the supermajority ratification process. He stated that supermajority rules made ours a good Constitution, “not just a few good men.” He cited the beneficent affects that supermajority processes provide through diversity of opinion and limitation of entrenchments, and argued that the process was crucial to the goodness we see in the Constitution. He then set out to defend his view against the two strongest attacks he thought were available; that the Constitution is old, and that the Constitution was not shaped by the entire society but merely by a certain class of society.

In responding to the age critique, McGinnis noted that the Constitution doesn’t pretend to be a “code of primary conduct,” but rather that it serves as a framework with ways to address change through alteration. In response to the rejoinder that amendments are too hard to achieve, McGinnis offered that if judicial updating did not occur then amendments such as the Equal Rights Amendment would have been enacted. In response to the criticism of the diversity of the polity, McGinnis admitted to the past errors in the system, but he then turned to the present and noted that the polity has expanded, that diversity now exists, and that through amendments we currently have a Constitution which has fixed the errors of the past while protecting previously unprotected groups.

After moving through the potential criticisms, McGinnis then offered that “just because you have a failure doesn’t mean you can create a better result through government.” He described this notion that there is a perfect solution as the “nirvana problem.” Criticizing this view as being unrealistic, McGinnis offered that in light of the benefits offered by originalism the burden is now shifted onto others to show, not just that originalism may have flaws, but rather that their system leads to “better consequences.”

After McGinnis’ original presentation, Fallon made brief remarks in which he both praised the approach and ambition of the piece, while also offering some level of skepticism. His critique looked at the structure of the piece and focused on what effect the substantive and procedural aspects of McGinnis’ defense could offer.

He also proposed that it might be that “we should just judge” that something is good or bad based less on procedural aspects which may not offer their hoped for benefits, but rather based on whether something is “good or bad on substantive grounds.”

McGinnis responded to these comments by coming right back to the focal point of his argument, procedural benefits and their value. He took on Fallon’s normative argument by noting that the problem with normative judging is that “we don’t always agree.” In response he offered that in a large diverse society with such disagreements the focus should be on creating procedures. Once we have those procedures, McGinnis argued, it is then important to stick to an original understanding of the outcomes so as to protect the results of the good procedure.

In the end of his remarks, as in the beginning, McGinnis defended Originalism by defending the processes that created the original wording and meaning of the Constitution, while challenging others to take up the burden of creating a system with better consequences.

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