In this third post on Original Methods Originalism, I want to conclude by explaining how original methods has the potential for signficantly limiting the discretion that judges exercise under an originalist approach. One of the key issues in recent originalist theory involves the distinction between interpretation and construction. For my purposes, it is not the distinction between interpretation and construction, but the distinction between interpretation and the construction zone that is important. Interpretation involves the process for determining the actual meaning of a constitutional provision. After applying the interpretive process, it is possible that the original meaning may not decide the…
Greg Weiner and Evan Bernick have been conducting an interesting debate in this blog about the virtues of judicial restraint and judicial engagement. Rather than directly confront either position, I would like to raise a methodological point. Doesn’t judicial restraint or judicial engagement need to be rooted in the meaning of the Constitution? In other words, judges’ approach to constitutional interpretation should not be based on policy arguments about how judges should behave but on the original meaning of Constitution itself, just as our interpretation of specific provisions should be fixed by original meaning.
Let me be a little more specific:
In my previous post, I raised a question about originalist theories that employ the concept of construction. I wrote:
The existence of construction raises an important textual question. If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution? Put differently, if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?
And then I continued:
If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution. And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land (since only the Constitution, federal statutes and federal treaties are supreme law of the land). Decisions within the construction zone would arguably not be entitled to displace either state law or federal statutes.
In the remainder of the post, I explored some possible ways that those who employ construction might address this issue.
In response, my friend Larry Solum has written a helpful response. I would recommend that readers take a look at Larry’s post, which is interesting and constructive. Here I certainly can’t capture all of the subtleties of Larry’s view or post.
The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic meaning. Unclear language, in contrast, creates a construction zone. Within that zone, the judge may appeal to materials other than its original meaning in the course of judicial review.
Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:
If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution. And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land
Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.
One of interesting questions in originalist constitutional theory is the relationship between theory and text. Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory. While this is a complicated matter, there is clearly room for both types of arguments.
This issue arises as to the practice of “construction.” In originalist theory, some scholars draw a distinction between interpretation and construction. Interpretation is the practice of determining the original meaning. But what if, as these advocates of construction argue often happens, the original meaning runs out (that is, there is no original meaning as to an issue because the constitutional language is ambiguous or vague)? Then, those scholars argue that the matter is within the “construction zone” and one must look outside the Constitution to answer it. For these scholars, having to look outside the Constitution is not a choice that a judge makes. It is simply the inevitable result of the original meaning running out.
In my own work with John McGinnis, we have been skeptical about construction and have argued that appropriate interpretive rules would avoid (or at least minimize) the need for construction. But for purposes of this post, assume that we are mistaken and that construction is an important element of constitutional adjudication.
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.
(This post is written jointly by John McGinnis and Michael Rappaport).
We were surprised and puzzled by Randy Barnett’s post complaining that we had not fairly represented his views on originalism in our book Originalism and the Good Constitution. His focus was on a few brief paragraphs in the introduction that could not comprehensively discuss these issues, but in any event we do not believe our comments were inaccurate or disrespectful. We believe that Randy has misinterpreted our discussion.
1. Randy first objects that we refer to originalists who believe in construction as “constructionist originalists.” Randy criticizes this as an “argument by labeling.” Randy states: “I call myself an originalist (of the original public meaning variety). Period.” But there are many theories of originalism and not all of the original public meaning theories embrace construction. A term was needed to refer to these theories and we do not believe there is anything derogatory about the term constructionist originalism. Some people refer to these theories as the new originalism, but there are new theories of originalism, including ours, that do not embrace construction. Hence the need for a more specific term.
2. Randy also objects to our assertion that theorists who believe in contruction argue that interpreters are only bound by the original meaning when it is clear. Randy writes that he “propose[s] no such ‘clear statement’ approach to constitutional interpretation.” But we did not use the term “clear statement,” nor were we implying it. One of the main differences between our original methods view and the view of advocates of construction is that original methods believes that close cases – where the evidence just slightly favors one interpretation (what we call a 51%-49% situation) – should be resolved based on the stronger interpretation whereas advocates of construction seem to believe that construction should resolve that situation. Thus, in our view, advocates of construction apply construction rather than interpretation in cases where the evidence is close, thereby applying interpretation only when the evidence is clear. Even those who adhere to construction have used the term “clear” in this sense.
Over at the Legal Theory Blog, Larry Solum has a Legal Theory Lexicon post on The Interpretation-Construction Distinction. The post is an excellent one and Larry has certainly done much to develop this distinction.
Larry does not mention, however, that there have been significant criticisms made of the distinction. In this article, which I wrote with John McGinnis, we criticize the distinction on theoretical, historical, and policy grounds: