Contrary to the assertions of critics of the original intent approach to the Constitution, super majority rules, such as requiring a two-thirds majority to amend the Constitution, “tend to produce desirable constitutional provisions” such as granting blacks voting rights and women as well, Michael Rappaport, a law professor at the University of San Diego, said recently in remarks at the Cato Institute.
Rappaport coauthored the recently released book, Originalism and the Good Constitution, with John McGinnis of Northwestern University’s Law School, who also appeared in the seminar at Cato. McGinnis also noted that the problem with the original Constitution, regarding the exclusion of blacks and women, “has largely been corrected.”
McGinnis said that critics of the original intent interpretation of the Constitution have “an objection to constitutionalism.” To them, the “dead hand theory,” as it is known among law professors, “doesn’t make a lot of sense,” said McGinnis.
Critics contended that writing the Constitution was far easier for the Framers while they were writing it and could avoid the problems we face today like needing a super majority to change the Constitution. But, McGinnis said the writing process for the document “was a serious super majoritarian process.” The resulting “informal advantage” of the framers “is inevitable in a world where time goes one way,” said McGinnis, “We reap the advantages of the stability [that] the Framers gave us.”
But, McGinnis said that we must take into account the alternatives: We abandon the current Constitution and write another, or we enforce the current document and make corrections, or we enforce the “imperfect Constitution” as it is without making changes. “It’s very difficult to suggest that we go with a whole new Constitution,” McGinnis said.
Although the Constitution may seem outdated, Rappaport said that it would require significant time and resources to map out a detailed analysis of the Framers’ intentions when the Constitution was written. McGinnis said, “The Framers never forgot that it was a constitution that they were creating” and built a mechanism for change within the document . Federalism, which gives states flexibility, “can have tremendous benefits for liberty.” Like Rappaport, McGinnis said that concentrating power in the hands of a few (such as the Supreme Court), “makes people suspicious of the amendment process.”
He criticized the judicial branch, particularly the Supreme Court, because their decisions are not super majoritarian by nature. Instead, the Supreme Court justices rely on past court decisions to interpret the cases of the present.