More on Construction: A Response to Larry Solum

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. 

Despite the strength of his arguments, though, I still don’t believe that Larry’s answer resolves the issue.  In answering my question (“if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?”), Larry writes:

My view is that it depends on the nature of the underdeterminacy and the method of constitutional construction employed.  For example, if a provision is vague and the method of construction is precisification, then the answer to Rapp[ap]ort’s question is “Yes, the decision is based on the Constitution, but the precise line drawn is not found in the constitutional text.”  Drawing the line is the method by which we give legal effect to the text.  Similarly, if the content of the provision is clear, but the constitutional text does not provide a remedy, then the answer to Rappaport’s question is “Yes.”  The implementing rule gives the text legal effect.

As Larry suggest, he discusses a number of type of underdeterminacy and construction methods.  But to keep it simple, I will just address this particular answer.

Larry is certainly correct that a decision implementing a vague constitutional provision is in part based on the Constitution.  But that decision is also based on something else.  For example, imagine a vague term T that has a range of possible meanings from T3 to T8.  Now, if the judge selects something outside the range of possible meanings – say T2 or T9 – his decision would violate the Constitution.  Clearly, then, the Constitution has something to say about the correctness of the judge’s decision.

But how does the judge choose among the meanings in the permissible range from T3 and T8?  By assumption, the original meaning does not decide this matter.  That decision – what Larry refers to here as the implementing rule or as giving effect to the text – is not determined by the Constitution.

What should we say about the implementing rule (or the other methods for resolving uncertainty)? One way to think about it is to ask what type of law is the implementing rule.  There are a limited number of possibilities.  Let me discuss a few.

1. One possibility is that the implementing rule is constitutional law. But if it is constitutional law, it does not derive (entirely) from the Constitution.

2. Another possibility is that it is general law (something like federal common law). But if it is general law, how can it displace federal statutes or state law? Perhaps one has a theory that Congress and the states are disabled from passing law in this area and and therefore this law has operative effect.  (Steve Sachs call this a constitutional backdrop.)  Maybe.

3. Yet another possibility is that the Constitution delegates to judges (or other decisionmakers) the power to make the decision (perhaps based on other criteria, such as common law). For example, one might argue that it is part of the traditional power of judges to implement vague constitutional provisions (perhaps in accordance with common law rules). And that power is part of what we mean by the judicial power.

There are other possibilities.  I really don’t know what the answer is.  But I think the answer is important, especially for people who believe that many questions are within the construction zone.

In the end, my point is that the meaning of the Constitution for advocates of construction is relatively narrow.  Thus, something else must supply the answer.  And what that is – and how it fits into the Constitution’s overall scheme – is not an easy question to answer.  Larry writes that one should not assume that construction involve a direct resort to normative considerations.  About this he is certainly correct.  But the question is whether any legal considerations can be applied within our constitutional scheme to answer these questions.  Perhaps they can, but perhaps they can’t.