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.