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

Introduction John McGinnis and Michael Rappaport have done much over the last decade to draw our attention to supermajoritarian rules in our constitutional and political culture and to explain their desirability on a number of registers.1 The lessons they have taught have broad application to an array of interesting debates in constitutional law and political theory.2 But now they have gone too far. In A Pragmatic Defense of Originalism, they seek to explain why supeimajoritarianism furnishes a new pragmatic defense of originalism.3 This most recent piece of their project simply does not work: none of their major theses does anything to clarify the ongoing debate about whether the Constitution of the United States should be interpreted primarily in light of its original meaning or whether other modes of interpretation are better suited to the task. 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,4 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,5 but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning. I. WHY THERE IS NOTHING NEWLY PRAGMATIC ABOUT MCGINNIS AND RAPPAPORT'S ORIGINALISM McGinnis and Rappaport begin their discussion by aiming to show how pragmatists can embrace originalism because, under their rationale for originalism, it is likely to produce good consequences overall.6 This argument is not a new gambit for originalists-and it goes nowhere, in any case. As McGinnis and Rappaport readily concede, there have always been originalists who have offered accounts of their interpretive methodology that emphasize the good systemic consequences originalism may produce.7 Indeed, their Essay spells out a few of these well-known efforts: different originalists have proffered the benefits of the rule of law, more legitimate democracy, more stability, less judicial discretion, and less partisan interpretation as good results that may accrue from embracing originalism.8 Although McGinnis and Rappaport quickly and efficiently dismiss each of these attempts to align originalism with good results,9 they fail to understand, more fundamentally, why some pragmatists have always refused to be moved by these originalist prognostications. It isn't simply that pragmatists just need a more convincing set of good results likely to follow from originalism to stimulate their conversion. Rather, there are more central reasons they can't join the originalist fray, ones McGinnis and Rappaport anticipate but fail to develop. In short, there is a difference between what one might call "rulepragmatism" and what McGinnis and Rappaport call in a footnote "case-by-case pragmatism."10 Rule-pragmatists are looking for interpretive rules that, over an entire legal system, will produce the best results and generate the best systemic consequences. Rule-pragmatism takes a global view and doesn't muddy itself in the micro-level decisions that emanate from the application of the rule to particular cases. …