Textual originalists can disregard original intent - and that's a good thing.
(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.
3. Randy also objects to our claim that constructionists believe that when a provision is ambiguous or vague, interpreters may resort to extraconstitutional materials. Randy appears to largely accept the substance of our claim as to vagueness, which he says may sometimes require construction. While he objects to our claim about ambiguity, he still acknowledges that there may be rare cases of “irresolvable ambiguity” where construction is needed.
More importantly, when we refer to ambiguity and vagueness here, we are not discussing the situation where a term is ambiguous or vague upon initial examination, as Randy seems to interpret us to mean. What we mean is that the term is ambiguous or vague after some analysis. If the ambiguity can be resolved, then this is not what we mean by an ambiguity here. Thus, we continue to believe that advocates of construction hold that terms that are ambiguous or vague (after analysis) require construction.
4. Randy also complains about our characterization that constructionist originalists want to replace original meaning with construction. He says they merely want to supplement originalism. We do not think we are drawing a contrast between replacement and supplement in the phrase he quotes. But assume we are: If we are right that originalists should always choose the better meaning, those who adhere to construction are replacing a bit of the original meaning though the use of extra-constitutional material rather than simply relying on the original meaning. To be sure, we are here describing construction from within our theory, not within his. But how can we be expected to do otherwise? We would note that Randy and others often describe our theory of original methods originalism as containing a theory of original methods construction (which Randy does in this very post), which is true within their theory, but not within ours.
We are saddened by this dispute, because we are obviously on the same side as Randy on the most important matters of constitutional theory and we have the greatest respect for Randy’s contributions.