Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm

Abstract

In this essay I explore the connections between public choice and originalism, arguing that public choice is crucial to development of the originalism both in its diffuse popular and more academic form. As Robert Bork’s famous article, Neutral Principles and Some First Amendment Problems, illustrates, originalism begins as a reaction to the Warren Court, but it is a reaction that largely accepts the primacy of democratic majoritarianism that had begun in the Progressive era. It is public choice more than any other theory of politics that loosens the straightjacket that majoritarianism has on constitutional theory. In its more diffuse form, public choice with its emphasis on the self- interested nature of politicians, the power of interest groups, and the pathologies of collective choice made majority rule less attractive. James Buchanan’s contribution with Gordon Tullock in The Calculus of Consent has particular relevance to originalism, because it decisively breaks from the idea that majority rule should be the presumptive norm in constitutional republics. If constitutions are best made by supermajority rules, as Buchanan and Tullock imply, originalism can be justified as a way of protecting the results of supermajoritarian constitutionmaking from change by either majorities or the peculiar submajorities that are comprised by the justices of the Supreme Court. As important as are the interpretive disputes within originalism, like that between original intent and public meaning, public choice’s inflection point may be more important because it moves originalism from a theory that was concerned primarily with protecting democratic majorities to a theory that was concerned with preserving a republican regime that was in its formation and essence nonmajoritarian. That shift in turn empowered originalism to become a much more aggressive theory of judicial review of legislation, creating more potential conflict between the judiciary and legislative majorities. The essay also briefly critiques some constitutional theorists who have stayed within the Progressive Paradigm, because their theories fail to solve the countermajoritarian difficulty at its heart. It ends with a description of four problems that public choice originalism has yet fully to address.