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.

Reader Discussion

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on August 07, 2015 at 10:30:22 am

[M]y 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....

You mean, not interpretive?

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on August 07, 2015 at 14:45:27 pm

Luv'd it!

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Image of gabe
on August 07, 2015 at 14:49:57 pm

"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."

That may be it in a nutshell. assume that one starts from a premise that the Constitution covers only, say, 15% of possible litigation / liberty protections.

What then is the poor judge to do when confronted with the other 85% - Why schucks, I will just *construct* a solution to this terrible unresolved problem. In so doing, I may also expand my own institutional power / influence while having the added advantage of benefiting the rest of the citizenry with the blessings of my unique wisdom.

Seems to be a theory that has found some measure of support!!!

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Image of gabe
on August 07, 2015 at 16:22:12 pm

As much as I enjoy the discussions here about originalism, I cannot find a rational grounds for agreeing with it.

Let's look at my world, which is computer software, for a moment for a little contrast.

Computers are rule based systems, as is the Constitution. Computer rules are more strict than the law governing a nation, but they behave in similar ways with respect to limiting human activity.

One of the problems in the computer world is the problem of hackers breaking into systems. Hackers are generally kept out through a firewall. Basically, a firewall is a system of computer rules that says what data can get into a system and what data can come out. The issue that security experts complain about is the problem of keeping the hackers out. As one expert put it, whenever they implement a seven foot wall to keep the hackers out, the hackers build an eight foot ladder to get over it. There is always a way around the rules.

That's the problem with systems of rules. There are always ways to get around them.

Within the context of the Constitution, there are always ways to get around the rules. Whatever the theory might say about this, the truth is shown in practice. Look at how much of our government today operates outside the rules of the Constitution.

A certain amount of human flexibility is needed to counter the rule breakers. The fixed set of rigid rules established in the Constitution and its original intentions are insufficient for governing. The human element is more important. The selection of judges is more important than the theory of interpretation. The method of selection of judges is more of a controlling factor over interpretation than the rule-based theory of applying the law.

The current method of selection has the Executive and Legislators appointing and approving justices, which creates a bias in the justices to grant more power to the Executive and Legislature. Over time the justices grant the Executive and Legislature greater and greater power, which is what we see today. That trend will continue until the method of appointment changes to one that does not create bias towards the Executive and Legislature.

Though the study of the theory of originalism is one I support wholeheartedly, I cannot agree with the semi-panacea aspect of it. Moving towards an originalism rule of interpretation means moving from a six foot wall of protection to a seven foot wall. The power hungry will build an eight foot ladder to get over it, and government overreach will continue.

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Scott Amorian
on August 07, 2015 at 17:27:54 pm

I think my view on construction vs. interpretation can be summed up in one quote:

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." -Thomas Jefferson in a letter to Supreme Court Justice William Johnson.

That is the role of a judge. Not to think what are all the possible meanings and then not strike down anything that could possibly conform to any of them. A judge should put themselves in the place of those that wrote the words, that ratified those words, that listened to those words promulgated and ask "why was this provision added?" Use the answer to that question to try and guess what is the most "probable" principle underlying the words that would apply to the facts before the court and then apply that meaning of the constitution to those facts. Only at this point should you ask yourself is the constitution at "irreconcilable variance" and strike down those laws that violate the meaning of the constitution. Yes this means that not every answer can be recovered from the text and the history alone, but sometimes the judge need to go into what the judge believes is the most probable reason for the provision (which is not contradicted by the historical record), to determine its meaning as applied to facts not considered at the time.

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Devin Wakins
on August 07, 2015 at 18:07:25 pm

In devising a system in which the guards will guard the guards, no system will be perfect. Still, we may have grounds to expect that some systems will have tendencies that other systems will avoid. Here’s the libertarian case:

A flexible system may well have the capacity to respond to unforeseen circumstances – and there will always be unforeseen circumstances. But if you believe that people respond to incentives, and people with power will tend to increase their power where they have the discretion to do so, then a flexible system puts greater discretion in their hands to aggregate power.

A more rigidly limited system will have less capacity to respond to unforeseen circumstances, but will have greater capacity to deal with the foreseen circumstance of people in power trying to increase their power.

So – which type of threat should we design to manage? Recall that there is only one nation that has ever nuked the US: that nation is the US. Can we really trust those guys -- even if those guys is us guys?

A last libertarian thought: When considering how to keep people from scaling your walls, compare the fortifications of Rome and Lucca. Rome’s walls were much more impressive – and Rome was sacked repeatedly. Lucca’s fortifications were more modest – yet remain unbroken to this day. Why? Basically ‘cuz Lucca didn’t really have enough stuff to make it worth the trouble to sack.

Similarly, even if you can’t keep people from scaling our Constitution’s defenses, we can discourage the practice by reducing the incentive for doing so. If the levers of government don’t really operate much, then ambitious people will look elsewhere.

(And the non-libertarian response goes something like this: Yes, if you’re an American designing a system to protect you against a regime that imposes the greatest threat to you, almost certainly you would want to guard against the American regime.

But for most of us, the greatest threat we face is not the US government running amok. Rather, it’s cancer. Or street violence. Or poverty. Or an abusive family member. Or ignorance. Or drug addiction. Or prejudice. When you’ve been out of work for 40 weeks and your ex threatens you and your kid with physical violence at every turn, worrying about an overweening federal government is a luxury you really can’t be bothered with.

So if you’re in this circumstance, you generally favor granting government more rather than less discretion – not out of a love of government, but out of a desperate hope that there is someone, anyone out there with the power to deliver you from your woes. You want to believe in Superman; you need to believe in Superman. And occasionally, Superman arrives and vindicates your hopes. But whether he does or not, you need the hope regardless.)

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Image of nobody.really
on August 07, 2015 at 19:58:05 pm


Nicely done!

"A more rigidly limited system will have less capacity to respond to unforeseen circumstances, but will have greater capacity to deal with the foreseen circumstance of people in power trying to increase their power. "

And I think this is where Mr. Madison was entirely too optimistic believing, as he did, that the institutional objectives of the separate institutions would serve as a means of limiting each others power and prerogatives. Throw in some "virtue" and Mr. Madison was happy. I guess he thought a six foot wall would be sufficient. Clearly, it is not as I write this perched upon a ten foot precipice and getting dizzy. I wonder will the "construction" of this precipice hold?

You are also quite correct with the issue of "preeminence of problems." One may call it *rational ignorance* - but I think you may be closer in proposing a rational *disregard* for constitutional issues on the part of those whose fortunes have not been quite as they would have liked.

Yet, we are nevertheless still confronted with the issue of *who* or *what* is to assume the role of Superman. To my mind, Superman should be wearing a RED CAPE not BLACK ROBES! His outfit is at least more colorful!!!!

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Image of gabe
on August 07, 2015 at 21:37:52 pm

Carly Fiorina absolutely DISSECTS Chris Matthews and leaves him speechless


ps. Link Exchange with CC?

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Image of Steve
on August 07, 2015 at 23:18:49 pm


Let me ask you this:

"“why was this provision added?” " - Is this not another way of asking "What was the decision that was made?" What were the drafters trying to either protect or avoid - and how does that illuminate and underlying principle?

I am not being critical here; simply trying to highlight that all text, all clauses were drafter with a specific purpose in mind. Yes, they may not be all inclusive of every eventuality but there is (or should be) an underlying (and unifying?) principle expressed via the text. How was this principle applied (or expected to be applied) to certain eventualities or in defense of some liberty? Again, we come back to a *decision* (yes, compromise more than likely played a role); but the clause is purposive. The question to be answered may be - "purposive to what end."

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Image of gabe
on August 08, 2015 at 00:24:37 am

To a certain extent I agree. But I am weary of looking to expected application. I think any principle (or decision) to be valid must be applied in the situation as they believed existed as they said it would apply. But the facts today (at least as we believe them to be) can be far different then when it was enacted and so the application even to specific situations mentioned at the time may be different today if a critical factual difference has changed. In such a situation the court must say what that factual difference is and establish why it is so critical as to override expected application.

But yes other then that looking to the purpose of the clause (or in other words what "decision" was made) is very important for gap filling where the historical record is silent. I at least do believe that original meaning is the most important so the key person isn't the drafter but the common man (with some legal training) who hears of the provision thinks it means. And if that cannot be proved as applied to modern facts then what he would have thought was the purpose of the clause was. Ratifiers and drafters understanding are good, but not conclusive, evidence of this understanding. But at least we usually have more evidence of what they thought the meaning or purpose was.

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Image of Devin Watkins
Devin Watkins
on September 01, 2015 at 22:41:56 pm

This is a popular way of discussing the problem of underdeterminate constitutional provisions. Constitutional constructions of underdeterminate provisions can be characterized as judge-made law, and hence as constitutional common law.

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Maria Briz

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