Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction

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.

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?

The answer would seem to depend on what the original meaning of the “Constitution” is.  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.

How might the advocate of construction avoid this result?  One possibility is to argue that the Constitution is not simply the original meaning of the document, but something else or in addition to it.  Certainly, many nonoriginalists make that argument.  But it is not an easy or attractive argument for an originalist to make.

Another possibility is to argue that the “judicial power” plus the “Constitution” requires that judges have the power to decide these matters of construction, since they are closely intertwined with the Constitution.  Perhaps.  But simply asserting this argument is insufficient.  I would like to see how it would be developed and what its historical support was.

The construction approach has been an influential one in recent originalist theory (even though I have largely disagreed with it).  But this is an important question that those who favor a construction analysis need to address.  I genuinely wonder how they will answer it.

Reader Discussion

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on August 04, 2015 at 14:11:55 pm

Supreme Court justices are in orbit over opinion about opinion and writers like Ron Dworkin are merely caught in the supreme draft. We’ve got to break free.
Here’s the problem. The founders, those men who signed the 1787 draft constitution for the USA were men. Well-read as they were, they were bound by what they had read and the civics of their time. Physics was as plain to them as it was to Thomas Paine, but they were in no position to influence events by referring to physics.
They had read Aristotle and Plato, Isaak Newton (1687), Burke and Paine, English Law, Iroquois law, Machiavelli, and so much more. But they had not read Thomas Jefferson (1800 and beyond), Lincoln (1846 and beyond), Darwin (1859) or Einstein (1905 and beyond). They had not observed space travel.
They tried to write a godless constitution for the USA, but a free population that was 99% Protestant and 1% Catholic was too easily repressed. Politicians partnered with clergy to restore Chapter XI Machiavellianism. So the Burkean tradition of basing civic morality on Christian morals was established within two months of the first Congress’s seating.

Thomas Jefferson wrote letters repeated urging federal officials to scrap the constitution for the USA so that each generation could address modern concerns unfettered by past prejudices. His idea was every 19 years, so with his wish, we would be in the process of the twelfth re-writing of the constitution for the USA. With Jefferson’s plan, “originalist constitutional theory,” becomes a minor consideration, applicable only the past twenty years if at all.
But the more important question is this: at the dawn of governance under civic morality, because twelve generations have demonstrated that religious morals often conflict civic morality, what should the constitution for the USA strive to represent. The Civil War informs us to utilize physics-based ethics. In his 1775 letter, “African Slavery in America,” Thomas Paine was urging physics-based civic morality but did not have the phrase. According to physics, one person cannot own another; persons don’t lie to each other so that they can believe the other person’s statements; people don’t run red lights so they can have confidence in green lights; men don’t question a woman’s dreadful decision to terminate her pregnancy.

Supreme Court Justices do not need to wait one minute to start reforming their minds to the reality that a civic people drive inevitably to conform to and benefit from physics: energy, mass, and space-time, from which everything, including lies and ethics, emerges. And the people need not wait one minute to reform their thinking from resistance to both physical evolution and cultural evolution. Religion’s purpose is to help individuals cope with the unknowns human beings face, and understanding physics helps the person in the quest for both personal liberty and domestic goodwill.
To read more about physic-based ethics, Google search or click on: Physics-based Ethics: Civic Examples .

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Phil Beaver
on August 04, 2015 at 15:09:47 pm

Ambiguity and vagueness are all a lack of providing information on how the words would apply in a given set of facts. And yet to provide any real enforcement a judge must try to understand that meaning. Imagine that the 2nd Amendment was just “the right of the people to keep and bear Arms, shall not be infringed,” and it was passed without discussion. What would the term “arms” mean? Almost anything could be used as a weapon, so is everything an arm? That seems crazy, and we can probably also reject arms referring to a person’s actual physical arms. But still, a court must give real meaning to the term to be able to protect it. Eventually trying to determine which weapons would fall within the term could not be determined entirely on the historical record. So what should the court do? I think the court has to look create a principle, a kind of legal algorithm that could be applied to future facts that did not exist (and could not have been considered) at the time it was written. The principle should be consistent with the words and the historical record, and ideally based on the reasons for the original words. But the principle must by its nature describe how the modern facts would (or would not) fit within the words of the rule. Deciding what that principle is cannot entirely be done with just the historical record, as the historical record is incomplete as applied to these new facts. The choice of that principle among all the possible principals that are consistent with the text and history is “construction” and cannot be entirely interpretation. And yet, enforcing that principle is attempting to apply the constitution to the facts before the court. To refuse to apply “arms” to all modern weapons just because they could not possibly have been considered by the founders at the time they wrote those words would not be applying the constitution to the facts. That doesn’t mean that all modern weapons are protected. Crafting that line is hard, and cannot entirely be done using the historical record as there are multiple different possible principles that might be consistent (maybe only hand held weapons, maybe only projectile weapons, maybe only items made as weapons, etc.). But trying to make that decision as to the correct (and historically consistent) principle and then applying it to the facts is the essence of applying the constitution or judging.

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Devin Watkins
on August 04, 2015 at 17:45:48 pm


Nicely said and your example of the "possibilities" available when considering the text of the 2nd and the nexus between interpretation and construction is spot-on. I think it also indicates that certain *principles* (derived from the DOI, perhaps, common law both US and English) must be considered. Contrary to the positivists out there who insist that principle can not and ought not to be part of the Constitution due to the vagueness of principle, you have demonstrated that the *text* and a purely positivist approach is even more vague.

I remember a writer on this site, a Mr. Smith, I believe, who posted an essay that argued for "decionalism" - I rather liked it as it would entail all the considerations you mention. In other words, what was the decision that the Framers made, what was the problem to be solved (or avoided) and what was the principle that guided that decision (and, yes, include the compromises that they made).

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