We are very happy to be blogging at the Volokh Conspiracy about our new book, Originalism and the Good Constitution, which has just been published by Harvard University Press. We want to thank both Eugene and the other Conspirators for the opportunity to offer our views on originalism.
Our book presents a variety of new, inter-related ideas about originalism. Over the next week, we plan to develop them, but for today we thought it useful just to give readers an overview of these various ideas. First, the book provides a new normative argument for following the original meaning of the Constitution – one that roots its argument in a welfare consequentialist (utilitarian) theory and that focuses on the supermajoritarian method for enacting and amending the Constitution. While this justification relies on value judgments, these judgments are not narrow ones, but ones that accommodate people of differing normative perspectives.
Second, the book presents a new approach to determining the original meaning of the Constitution – original methods originalism. This approach asks interpreters to read the Constitution using the interpretive methods that the Framers’ generation would have applied. We argue that this approach provides a more accurate method for determining the original meaning of the document.
Third, the book provides a new resolution of the so called dead hand problem, showing that each generation has the same formal opportunity to write its values into the Constitution. While the first generation probably had more input into the overall Constitution as a practical matter, later generations derive more than compensating benefits from inheriting a desirable constitution.
Fourth, the book defends the strict process for amending the Constitution. While many people claim that the amendment process is too strict, the book argues that the amendment process has many significant virtues and that the real problem with the amendment process is not that it is too strict, but that the Supreme Court renders it ineffective by updating the Constitution on its own.
Fifth, the book addresses a key issue for originalism that has been neglected – that the Constitution was written in a world that denied most blacks and virtually all women the right to vote. If the original Constitution had this defect, how can one argue that the original meaning of that Constitution should now be deemed binding on people?
Sixth, the book offers a new theory of precedent that maintains that precedent is consistent with originalism. We also argue for an intermediate approach to precedent that allows those precedents, that would be most disruptive to overturn, to be followed, while permitting a large number of nonoriginalist precedents to be overturned in favor of the original meaning.
Finally, the book describes what an originalist world, in which originalism was the dominant interpretive approach, would look like. Far from a world in which the living are passively ruled by those long gone, it would actually be a world where the present generation is actively engaged in constitutional politics and is charged with determining what our fundamental law should be.
We look forward to discussing these issues at the Volokh Conspiracy.