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Originalism and the Good Constitution

Originalism and the Good Constitution

John O. McGinnis, Michael B. Rappaport

ISBN 9780674725072

Publication date: 11/01/2013

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Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

Praise

  • Originalism and the Good Constitution is an impressive work, rich with interesting and intelligent arguments. In developing their normative argument for originalism, McGinnis and Rappaport stake out and defend various positions on contested points of originalist methodology. Their book will surely play a prominent role in the ongoing debate over originalism.

    —Ed Whelan, National Review

Authors

  • John O. McGinnis is George C. Dix Professor of Constitutional Law at Northwestern University.
  • Michael B. Rappaport is Hugh and Hazel Darling Foundation Professor of Law and Director of the Center for the Study of Constitutional Originalism at the University of San Diego.

Book Details

  • 312 pages
  • 6-1/8 x 9-1/4 inches
  • Harvard University Press

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