Frederic Bloom* & Nelson Tebbe**
Originalism and the Good Constitution. By John O. McGinnis and Michael B. Rappaport. Cambridge and London: Harvard University Press. 2013. P. 207. $39.95.
Our Constitution can change. We can amend it, update it, improve it. And so we have—twenty-seven times by one count, many more by another. Everyone recognizes this.
But fewer people appreciate that the mechanics of constitutional change can change as well. A method of alteration unaddressed at the founding can grow into established practice. A procedure built into constitutional text can slip into disuse. As much as citizens can change the substance of the Constitution, they can also change the ways they change it.
In Originalism and the Good Constitution, John McGinnis and Michael Rappaport make an elegant and provocative case for one method of constitutional change. They argue that the Constitution should change, if at all, only through the formal, supermajoritarian processes expressly outlined in the Constitution’s Article V. And they believe it follows that we should all be originalists too.
There is much to admire about McGinnis and Rappaport’s project. It is crisply written and carefully argued. Yet it raises some puzzling questions as well: Would their proposal itself constitute a kind of constitutional change? And, if so, can their effort succeed only through a process they seem to reject? McGinnis and Rappaport present Article V as more than good practice. They present it as the exclusive mode of legitimate constitutional alteration. But constitutional change has never come by way of Article V alone. It has come through a diverse array of political, cultural, and legal mechanisms: social movements, electoral fights, media debates, legislative overhauls, and much else—including academic argument. So we wonder: Would relying exclusively on Article V itself be a constitutional change—and, if so, would that put McGinnis and Rappaport’s proposal at odds with their own preferred process?
In this Review, we examine the complex facets of these questions. We also use Originalism and the Good Constitution as an occasion to ask critical questions about how the Constitution actually evolves and where supermajoritarianism truly fits in that evolution. We begin, in Part I, by outlining the relevant constitutional debate. We locate McGinnis and Rappaport’s book in its broader intellectual context, linking it to a recent migration among conservative constitutional theorists toward a kind of supermajoritarianism—and perhaps toward a kind of “law-ish” formalism. We distinguish McGinnis and Rappaport from those progressive constitutional thinkers who have turned another way—toward simple majoritarianism, or toward less formal modes of amendment outside of Article V. And we discuss McGinnis and Rappaport’s particular brand of supermajoritarianism, detailing two of their argument’s most pressing difficulties—its elision of important problems with elevated voting thresholds and the quiet but crucial way it gives up its own game.
In Part II, we expand the analytical frame. We consider why attention to supermajoritarianism is intensifying now and why it may appeal to particular scholars. We then argue for a different, more inclusive understanding of democratic change, both constitutional and otherwise—an understanding that includes a whole panoply of institutional, social, and political dynamics: formal rules and informal ones, voting requirements and nonvoting mechanisms, supermajority thresholds and social movements, legislatures and courts. Our claim, to be clear, is not that supermajoritarianism has no place in contemporary constitutional law or politics. Our claim is that real change occurs through formal supermajoritarianism and fleeting majoritarianism, through popular constitutionalism and amendment outside the law. It occurs, as it should, through a kind of multifarious “all of the above.”
* Associate Professor of Law, University of Colorado Law School.
** Professor of Law, Brooklyn Law School; Visiting Professor of Law, Cornell Law School. Warm thanks to Richard Albert, Christopher Beauchamp, Michael Dorf, Julian Kleinbrodt, John O. McGinnis, Jon Michaels, Julian Mortenson, Richard Primus, Aziz Rana, Michael B. Rappaport, Christopher Serkin, Pierre Schlag, Melissa Schwartzberg, and our colleagues at Brooklyn, Colorado, and Cornell law schools for helpful comments and conversations. Thanks to Steven Ballew for exceptional research assistance. And thanks to Nate West, Cari Carson, and the staff at the Michigan Law Review for expert editorial guidance.
. George C. Dix Professor in Constitutional Law, Northwestern University School of Law.
. Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law.
. McGinnis and Rappaport might respond that Article V need not be invoked every time a trivial departure from the Constitution’s text requires correction. That may be true. But even if it is, their response does not address the kind of change at issue here. A revision of a long-standing method of revising the Constitution should count as a type of fundamental change—and that fundamental change triggers the concerns at the heart of their book. For a more detailed examination of this point, see infra Section II.B.
Some might also respond that our questions can be raised about any of the forms of originalism that feature a return to ancient constitutional meanings. But for many originalists, return does not constitute change in the relevant sense. What sets McGinnis and Rappaport’s theory apart from other brands of originalism, as we will explain, is its focus on supermajoritarian enactment. And because at least some current constitutional understandings presumably enjoy supermajoritarian support—including perhaps understandings about constitutional change—it seems reasonable to ask whether a move away from those understandings should not itself require adherence to Article V, at least for this subset of understandings. Yet notably, McGinnis and Rappaport do not propose a new constitutional amendment—something that others have done, see infra notes 25–26 and accompanying text—but they resort instead to academic argument and public advocacy.
. By “law-ish” formalism, we mean a fidelity to certain fixed procedural rules for amendment.