Why Supermajoritarianism Does Not Illuminate the Interpretive Debate between Originalists and Non-Originalists

نویسنده

  • Ethan J. Leib
چکیده

962142. 43 In this more recent work, McGinnis and Rappaport cite Powell to instruct us on the interpretive conventions of the founding generation. Id. at 8 (citing Powell, supra note 39). And Powell at least provides McGinnis and Rappaport some useful support when he announces: "Although the Philadelphia framers did not discuss in detail how they intended their end product to be interpreted, they clearly assumed that future interpreters would adhere to then-prevalent methods of statutory construction." Powell, supra note 39, at 904. Moreover, there is much material in Powell that dovetails neatly with McGinnis and Rappaport's sympathy for original meaning originalism (though the evidence is far from univocal on the question). However, even if these excavations are historically accurate, McGinnis and Rappaport still need an argument for why any of this history should matter. And supermajoritarianism cannot fill that gap. 44 As Powell argues, at the time of the enactment of the Constitution, "there were sharp disagreements over which interpretive approach was acceptable." Powell, supra note 39, at 912.

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تاریخ انتشار 2013