Legal Commentary

Building on a long tradition, recent work in constitutional theory has traced the normative deficiencies of originalism to two central factors?the extreme age of the Constitution and the extreme difficulty of the amendment process. See here, here, here, and here. To help tease out the relative significance of each, consider the following thought experiment. Imagine that the Constitution could be amended by referendum through a simple majority vote. What implications would this have for the desirability of an originalist interpretive approach?

It seems hard to deny that originalism would be more defensible in such a system. In fact, it would be a downright plausible approach. If 51% of the people could amend the Constitution at any time, their failure to do so could reasonably be taken to reflect an implicit endorsement of its original meaning, especially if judges were widely known to be consistent originalists. Moreover, if any particular original meaning truly produced intolerable results, it would almost certainly be amended. Nevertheless, where a constitutional provision is sufficiently old and the consequences of its original meaning sufficiently bad in the eyes of recently appointed judges (even after accounting for the benefits of stability in the law), there is still a solid case for meliorative judicial construction.

Why? The answer, in brief, is the Coase theorem. Even a relatively lenient 51% amendment rule is costly?both in terms of the resources required to mobilize public support and the risk that the amendment will fail despite popular support (perhaps because too few resources could be collected to raise the issue to the fore of public consciousness). This means that, other things being equal, we should favor the judicial approach most likely to render amendment unnecessary. In the situation I?ve just described, judicial pragmatism (including a hefty dose of deference to contemporary legislators) seems a better bet than originalism. If pragmatist judges get it wrong?as they inevitably will in some cases?the costs would be relatively small; a 51-percent popular vote would be sufficient to overturn their decision.

Of course, this is a very different system than the one we actually have (at least at the federal level) and thank goodness for that. But it suggests an interesting question: Given the very high transaction costs of constitutional amendment under Article V, which (inevitably sticky) default rule makes the most sense? Original meaning? The plausible textual meaning thought best by professionally and institutionally constrained pragmatist judges? The meaning implicit in the actions of popularly elected legislatures and executive officials, except where clearly contrary to conventional understandings of the text? Personally, I incline toward the second and third options, though the question is both empirically and normatively difficult and may need to be posed at a lower level of generality to be answered intelligently.