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.