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.