At Liberty Law Blog, John McGinnis:
Thinking about the contributions of Judge Bork and Professor Buchanan together helped me understand the strong relationship between the rise of public choice and rise of originalism. The public choice view provided support for a constitution with features that constrain ordinary politics, protecting key social institutions like rights, federalism and the separation of powers. Originalism provided a theory of interpretation that supports these constraints on democratic politics, preventing them from being eroded by the forces that would favor their erosion, according to the predictions of public choice itself. I thus decided to write about the relation in essay called: Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm.
And further:
… [P]ublic choice is largely responsible for moving the countermajoritarian difficulty, which dominated constitutional law for decades, from the center of constitutional theory except for many of those on the left-liberal side who remain committed to the Progressive Paradigm. If majority rule is not a privileged norm, enforcing countermajoritarian aspects of the constitution are not only unproblematic but in fact an essential aspect of constitutionalism. And thus many of the moves in constitutional theory that have been devised to meet or temper the countermajoritarian difficulty are solutions in search of a problem.
Posted at 6:58 AM