John McGinnis & Michael Rappaport (Northwestern University and University of San Diego) have posted Original Methods, Deference, and Precedent on SSRN. Here is the abstract:
In previous work, including our book, “The Good Constitution,” we argued that the true original meaning of the United States Constitution is determined by the original methods. These methods are a function of the canons of constitutional interpretation that were in place when the Constitution was framed and ratified in 1787 through 1789. In this essay, we present a partial account of the original methods focusing on the role of deference and precedent in the interpretation of constitutional text, both at the state level before ratification and at the federal level in debates and discussions during the ratification process and in the early history of constitutional practice.
The original methods include two canons of construction, which we call “The Canon of Deference” and “The Canon of Precedent.” The existence of a canon of deference is easily demonstrated, as almost every member of the founding generation affirmed the principle that the judiciary branch should defer to the legislative and executive, except in cases where the meaning of the constitutional text was “surpassingly clear” in the words of Hamilton or “free from all doubt” in the words of Madison. The case for a canon of precedent is subject to some dispute, but we show that the preponderance of the evidence points to a rule of liquidation of meaning through precedent, such that authoritative interpretations of a constitution by a court were considered binding on future courts—even where there might be powerful evidence that the earlier interpretation was incorrect.
We then apply these canons of construction to two contemporary issues in constitutional law. The first issue concerns the line of New Deal Cases that combined Necessary and Proper Clause with the Commerce Clause so as to create a scheme of plenary and virtually unlimited power for the central government. We conclude that the ambiguity of these clauses, when combined with the canon of deference yield the conclusion that these decisions, including Wickard v. Filburn were required by the original meaning. The second issue concerns the Supreme Court’s abortion cases. Although we conclude that Roe v. Wade was incorrectly decided as an originalist matter, we demonstrate that the Court’s subsequent decision in Planned Parenthood v. Casey was required by the original canon of precedent.
Many critics of originalism have pressed what is called “The Dead Hand Objection”—the gist of which is that originalism precludes socially beneficial decisions like Wickard or Casey. Such critics may be surprised to find that originalism not only allows, but actually requires these decisions. But, as we argued in “The Good Constitution,” the fact the originalism produces good outcomes should not surprise anyone. The supermajoritarian procedures for adoption and amendment of the Constitution will always tend to produce optimal outcomes in the long run.
Highly recommended.
