The Judiciary Should Interpret, Not Construct, the Constitution

My recent paper, The Duty of Clarity, has substantial implications for an important current controversy in originalist theory—whether the judiciary should engage in construction as opposed to interpretation of constitutional provisions. The judicial duty of clarity suggests that the judiciary cannot engage in construction during the course of judicial review.  Construction takes place only when a provision is unclear, and the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution.

The controversy over the role of construction and interpretation arises from recent developments in originalist theory. Some theorists, often called the New Originalists, like Randy Barnett, Larry Solum, Jack Balkin, and Keith Whittington, have sought to recast originalism by making a strong distinction between language in the Constitution that is clear and language that is not. For clear language, interpretation governs, and the process of interpretation seeks to discover the semantic meaning of a provision at the time it was enacted. Unclear language, in contrast, creates a so-called Construction Zone, when conventional legal meaning runs out. Within the Construction Zone, the constitutional decision maker must necessarily appeal to materials extraneous to the semantic meaning of the Constitution.

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The Wealth of Cities

light trails with blurred colors on the street

Capital, in the 21st century, has a bad rap. Many say that because it is the source of “passive income,” it does nothing but pad the pockets of the idle rich, driving a wedge between the haves and the have-nots. It’s helpful, then, to be reminded that capital in all its forms is the source of human betterment. Capital is the accumulated stock of stuff (financial assets, physical equipment, human knowhow, even social connections) that helps us make and do more stuff. So policies that drain capital from a community or discourage its formation in the first place are likely to leave a trail of destruction. This is the central lesson of Stephen J.K. Walters’ Boom Towns: Restoring the Urban American Dream.

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Elizabeth Warren’s World, and Mine

Federal Reserve Hearing

Some time ago in these pages I’ve expressed my grudging admiration for my native country’s Weberian, bureaucratic legalism.  The years I spent under that system should give me an advantage in a bureaucratizing America that’s still trying to domesticate latter-day cowboys. Nope.  American-style bureaucracy is way more suffocating, stupid, and sinister.

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Why Thayer is Clearly Mistaken about Judicial Restraint

James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean.  “Clear mistake” thus embodies very strong judicial restraint.  My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.

Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should  invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers.  He quotes the words of law without understanding the accompanying jurisprudential music.

First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law. 

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Reforming Regulation: Eliminating Chevron Deference and Constraining Guidances

The words Court House outside the Supreme Court

In two prior posts here and here, I have been exploring possible reforms that Congress could enact to constrain executive power – asking whether such reforms would be desirable and whether a Republican Congress and President might enact them.

Another set of reforms involves shifts of power from the executive to the judiciary.  Here I will briefly discuss two such reforms: eliminating Chevron (and Auer) deference and subjecting guidance documents to increased judicial review.

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Civil Rights at the End of History: Hands Down, All Moot!


The celebrations of the Selma voting rights march 50 years ago noted how unthinkable it was that a Black President would be addressing them. Actually, it may have been no less unthinkable that a White Southern President seized the moment, a half century ago, to deliver the most stirring civil rights speech ever delivered to Congress.

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Clarifying Judicial Restraint

The notion that judges should uphold congressional legislation if it can be supported by a possible interpretation, even if not the best, of the Constitution remains evergreen in constitutional law. This conception of judicial deference, often referred to as judicial restraint, figures prominently in debates about recent important cases in constitutional law. For instance, some commentators believe that an obligation of judicial deference militated in favor of upholding the individual mandate in litigation over the Affordable Care Act,

I have recently posted a paper that provides an originalist resolution of this issue. Called The Duty of Clarity, the article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution.   That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision.  But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.

It thus rejects two common, but opposing views about judicial deference.  One is a no-deference view—the claim that no obligation of clarity should exist in judicial review: judges should invalidate their statutes if they think that there is conflict with the Constitution, even if they cannot come to a stable and clear view that there is such a contradiction. The other is the Thayerian deference view—the claim that a statute should be upheld so long a rational person could provide an interpretation of the statute that would uphold it.

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Is America in Retreat? A Conversation with Bret Stephens

america retreat

This edition of Liberty Law Talk discusses with the Wall Street Journal’s Bret Stephens his recent book, America in Retreat. Stephens argues that an America which declines to engage globally with its military is accepting a false promise of peace at the expense of rising disorder. The introduction chapter is entitled “The World’s Policeman” where Stephens quotes President Barack Obama’s proclamation in a 2013 speech: “We should not be the world’s policeman.” Similarly, Rand Paul states that “America’s mission should always be to keep the peace, not police the world.” “This book,” says Stephens, “is my response to that argument.” Our conversation focuses on…

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No to Common Core, Yes to State Competition in Education

There’s been some good writing on Common Core—e.g. by Richard Reinsch on this site and by my ex-colleague Rick Hess in National Affairs.  And there’s been a lot of hyperventilation over it, mostly in connection with de facto presidential contender Jeb Bush’s “doubling down” on his support for Common Core: can he really be a conservative? Isn’t Common Core a liberal conspiracy, hatched in D.C. to take over local schools? Etc. What’s been missing is the voice of a true education expert: me.

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Ted Cruz: A Probable Natural-Born Citizen of the American Republic

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

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