Michael Rappaport has more to say about Brian Leiter’s comments on originalism–and in particular to Leiter’s criticisms of the "supermajoritarian" theory developed by Rappaport & McGinnis. His post is entitled Justifications of Originalism. Here is a taste of Rappaport:
First, Brian’s arguments are framed in terms of Raz’s service conception of authority, a conception we do not employ. Instead, our arguments are essentially consequentionalist ones that claim that we are better off if we follow the original meaning of a Constitution enacted through supermajority rules. Second, Brian’s claim that supermajority rules produce desirable norms only probabilistically is not a problem. In the real world, most procedures cannot guarantee good results, but that does not mean they are not desirable. Criminal trials don’t always reach the right result, but that does not mean they are not justified as producing, on average, better results than alternative systems. Third, Brian’s claim that the fact that supermajority rules produce better results than majority rule does not mean they produce desirable results is true, but is not a problem for our argument. I said that supermajority rules produce more desirable results than majority rule to justify displacing majority enacted statutes, but our claim (stated in the last line of the excerpt above) is that supermajority rules produce desirable norms, not just ones better than majority rule.