Relying on the Court to enforce uniform opinions on rights when there is no consensus seems more like an invitation to civil war than to civil rights.
The Judicial Power Permits only Interpretation, not Construction
The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic meaning. Unclear language, in contrast, creates a construction zone. Within that zone, the judge may appeal to materials other than its original meaning in the course of judicial review.
Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:
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
Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution. I amass substantial evidence for this position– from the English practices that gave rise to judicial review, to discussions at the constitutional convention, to the opinions of justices of the early Republic who stated that they would only invalidate legislation if they could find a clear contradiction between it and the Constitution.
In short, if the conception of judicial review outlined in The Duty of Clarity is accurate, the judiciary cannot engage in construction in the exercise of judicial review, because it can set aside the constitutional judgments of the other branches only when they conflict with a meaning of the Constitution which the judiciary finds to be clear. And construction applies only in cases when meaning is not clear. For originalists the judicial role in constitutional review must be limited to interpretation.
Update: I made minor changes in the language of the post for purposes of clarification.