- Gebundene Ausgabe: 298 Seiten
- Verlag: Harvard Univ Pr (5. November 2013)
- Sprache: Englisch
- ISBN-10: 0674725077
- ISBN-13: 978-0674725072
- Größe und/oder Gewicht: 2,5 x 16,5 x 23,5 cm
- Durchschnittliche Kundenbewertung: Schreiben Sie die erste Bewertung
- Amazon Bestseller-Rang: Nr. 2.192.765 in Fremdsprachige Bücher (Siehe Top 100 in Fremdsprachige Bücher)
Originalism and the Good Constitution (Englisch) Gebundene Ausgabe – 5. November 2013
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"Originalism and the Good Constitution" is a major contribution to constitutional theory that has no obvious substitute or counterpart. This book will be much noticed and much discussed as part of the growing debate over constitutionalism.--Gary Lawson, Boston University School of Law
"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 online" (10/16/2013)
Originalism and the Good Constitution" offers the most elaborate and coherent explanation and defense of originalism now available.--A. D. Sarat"Choice" (07/01/2014)
Originalism and the Good Constitution is a major contribution to constitutional theory that has no obvious substitute or counterpart. This book will be much noticed and much discussed as part of the growing debate over constitutionalism.--Gary Lawson, Boston University School of Law
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 online" (10/16/2013)
Originalism and the Good Constitution offers the most elaborate and coherent explanation and defense of originalism now available.--A. D. Sarat"Choice" (07/01/2014)
This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time...A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore...This is the best book on originalism in a long time, and anyone interested in the subject should read it.--Ilya Somin"Volokh Conspiracy" (10/13/2013)
Über den Autor und weitere Mitwirkende
John O. McGinnis is George C. Dix Professor of Constitutional Law at Northwestern University.
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This argument is compelling—as far as it goes. Unfortunately, for me, it doesn’t go much farther than the authors’ discussion of precedent, which is wholly unsatisfactory. The authors proceed to discuss precedent in Chapters 9 and 10 as if they have already proved their thesis and are merely performing mop up duty, dealing with something that has always been a messy irritant for originalists. But precedent undermines their argument in ways McGinnis and Rappaport do not acknowledge, and it highlights the ultimately metaphorical nature of their argument.
The authors make one-and-a-half critical concessions when discussing precedent. First, they acknowledge that some precedent represents entrenched norms, although the precedent is contrary to the original understanding of the constitution and was never formally adopted using constitutional amendment procedures. Their primary example of this is the widespread endorsement that the Fourteenth Amendment severely limits sex discrimination. The authors are well advised to acknowledge this since it is so obviously true.
Nevertheless they seem resistant and cagey, as if admitting it under duress. For example, they carefully avoid calling entrenched precedent “norms”—although that’s clearly what they are. The public’s support for eliminating sex discrimination in employment, for example, is every bit as much as “norm” as anything passed through the formal amendment process. Instead, the authors call it a “widely accepted opinion” (182) and a “constitutional principle” (183), as if to pretend that norms can only be entrenched through formal amendment procedures.
Second, McGinnis and Rappaport partially acknowledge that some constitutional entrenchments become “un-entrenched” (for lack of a better word). Here, too, they are cagey, never coming out and just saying it. I don’t know why. The Contracts Clause, for example, would be a perfect illustration of an un-entrenched norm. Today, it has practically fallen completely out of the Constitution though it at one time garnered super-majority support.
What we have, then, are three things: (1) norms that have apparently been “entrenched” by the constitutional amendment process, (2) norms entrenched through something other than the amendment process, and (3) formerly-entrenched norms that have become un-entrenched. I was hoping for a unified theory capable of explaining all three. Unfortunately, McGinnis and Rappaport fail to provide anything resembling a unifying theory. Instead they seem to want to leave the reader with the impression that norms are entrenched only through formal constitutional means.
Now, let me propose a unifying theory that can explain all three phenomena but is directly counter to the author’s theory: no norm is ever “entrenched” at any moment in time, not even through a constitutional adoption process. Rather, norms are “constantly reproduced.” That is, a norm like standing in line at a grocery store, was never “entrenched” by some formal process. It is constantly kept alive because we constantly produce it (stand in line).
This theory accounts for all 3 phenomena. Some norms, to be sure, will be constantly reproduced for hundreds of years. But that’s not because of any prior “entrenchment.” Rather, it is constantly reproduced because it satisfies a present need. And it is capable of being abandoned should it no longer serve that need, or the need disappears.
You should be able to see the difference. The author’s idea of “entrenchment” treats norms like fetters, placed on the public at a moment in time and almost impossible to shake off. Instead, I see norms as fetters we attach to ourselves—and can remove when we want.
I would thus analogize norms to language. A language survives because it is constantly being spoken. No formal “entrenchment” can keep a language alive. Norms, like languages, are kept alive only by the living. The idea that supermajority passage of an amendment “entrenches” a norm is, therefore, entirely metaphorical.
To see how it is metaphorical, ask yourself what the norm is “entrenched” in? When you entrench a tent pole into the ground, you can reach down and feel the ground. What is a norm entrenched into? An American consciousness that runs from Ben Franklin to me? The Constitution? (The authors acknowledge that the public is “rationally ignorant” of the Constitution (182).) There is no “entrenchment”; there is only reproduction. Ironically, the authors first use the word “entrenched” on page 6, immediately after a sentence in which they criticize Keith Whittington’s theory of popular sovereignty as “metaphorical.” But McGinnis and Rappaport’s theory of “entrenchment” is itself a metaphor.
One can readily see why the authors are so drawn to the “entrenchment” metaphor. If we can pretend that norms are “entrenched” at a moment in time, like a stake being driven into the ground, then what the person holding the hammer thinks becomes paramount in importance. But if norms are constantly being reproduced, and dying off when a generation no longer reproduces them, then what the Founders thought is practically irrelevant. Original public meaning disappears.
I also don’t like how the authors speak of norms. When they write, “If the Supreme Court was willing to admit openly what it was doing—employing norms that were not placed in the Constitution” (87), they describe norms positively; that is, they envision norms prescribing specific conduct. I disagree. I see norms negatively—i.e., they proscribe conduct. In other words, norms limit the range of acceptable results. Only when norms have so limited the range of acceptable conduct that only one option remains, that’s when there is a “positive” norm.
But I can’t imagine the Supreme Court would ever use a positive norm to decide a case. Because norms are so widely shared and deeply held, any case that could be decided by a norm wouldn’t generate a circuit split. Thus, I don’t think the Court “employs” norms. Rather, norms constrain the Court; social norms limit the range of results the Court can reach.
Furthermore, I don’t think most of what is in the Constitution qualifies as a “norm” in any event. The Constitutional language is too general. Norms are context-specific: they proscribe certain conduct in certain situations (but not in others.) Most of the Constitution—“freedom of speech,” “life,” liberty,” “equality,” etc.—should more profitably called “values.” We value them. Unfortunately, these values are at cross purposes in many political controversies—abortion, anti-terrorism, affirmative action. The Justices, like the public, balance these norms. They have to weight them. But at the limit, some weighing will bump up against a hard limit: the norms. The Justices are therefore thrown back into the same space as legislators: coming up with a policy decision within the narrow range of reasonable results.
The reason McGinnis and Rappaport can’t see this is that, like all originalists, they begin at the wrong starting point. They start with the idea that the Constitution is supreme—or that is should be. But it isn’t supreme. Social norms are supreme, whether you like it or not. And these norms don’t exist because of some prior, formal entrenchment. They are constantly reproduced to satisfy present needs. Which means constitutional adjudication will always be bounded by each generation’s social norms.
Properly understood, the importance of norms should lead us to question the usefulness of judicial review in the first place. Because the Justices can only pick from a range of choices limited by social norms, they cannot come to any different result than what could be generated by the political process. So judicial review is, essentially, redundant.
Originalists have never seen (how many decades now?) the uselessness of judicial review. Like non-originalists, they are interested in crafting some theory of interpretation that can gerrymander in the results they like while excluding the ones they don’t. But no theory of interpretation will allow a Court without an enforcement mechanism to force the public to violate its norms. Therefore, the only results originalism can generate are those that also could be generated by politics. For this reason, originalism is inherently political. Though the authors claim their book is a new and different originalism, it’s really the same old originalism under the covers.
And then there’s the book’s final chapter. Oh boy. Titled “Imagining an Originalist Future,” it exhorts the reader to envision a “culture of originalism” (197) in which happy people help “usher in a golden age of originalism” (198) by engaging in historical scholarship which generates a “virtuous circle” of ever-more scholarship (200). “A world where originalism is dominant is not simply a dream,” they tell us (200). Wake me up when the spaceship arrives on the Hale-Bopp comet.
Why write something as embarrassing as this final chapter? Well, this chapter is the authors’ attempt to deal with the dilemma originalists have always had to navigate. To wit: in order to build a constituency for originalism, originalists have to hype the negatives of non-originalist judicial review. After all, inertia can lock in the status quo. You have to give people a reason to get up off the couch and demand originalist constitutional interpretation. Paradoxically, however, the more over-reaching originalists make non-originalist judicial review appear, the more they call into existence their own resistance. Now the status quo is threatened because the public sees non-originalism as so central to the present world. It must be one of its foundations if originalists are squawking so much about it, and originalism therefore appears too radical, too upsetting. It will change too much. In other words, the more successful originalist are (at getting you to see non-originalism as a problem in the real world) the less successful they are (at getting you to adopt a different mode of interpretation to apply to the same world).
The authors try to navigate in this dilemma in two steps. First, they downplay the negatives of non-originalism. (In fact, they are too successful. Their chapter on precedent identifies only one opinion they think should not be given precedential force—Roe—and they concede that, even if it were to be overturned, most abortion would not be criminalized. Does that mean the “Golden Age” of originalism is…now?) But their soft-pedalling of the dangers of non-originalism creates a problem: now there is no reason to be an originalist if originalism wouldn’t change anything.
Accordingly, if they are unwilling to scare you of the dangers of non-originalism, they have to play up the benefits of originalism instead. But they have to abandon their reason offered in the rest of the book, i.e., originalism will lead to good results. After all, if every precedent that is non-originalist (bar Roe) has led to sufficiently good results to be supported by a super-majority of the public, then the authors have cut the heart out of their argument. Therefore, all they have left in the concluding chapter is to grasp at other, more metaphysical benefits of originalism, which is why we get groaners like “a great of achievement of originalism” is that it has created “a correspondence of elegance and beauty that helps sustain a Republic” (207). Yes, originalism as Michelle Kwan!
I, too, appreciate “elegance” and “beauty.” Like most Americans, probably, I just don’t need it from the Constitution or from a constitutional interpretative theory. More “cult” of originalism than “culture,” the authors’ “golden age” confirms that originalism is flat on its back and getting measured for its pine box. Originalists have literally run out of ideas.
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