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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.

Reader Discussion

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on August 06, 2015 at 14:54:30 pm

John:

A question: Would you accept that there may not be such a "bright line" between interpretation and construction or that in the art of interpretation there must be recourse to sources such as the founders intent(s), writings, or in the case of your cited paper, convention debates, etc? Clearly, there are cases where the "words" of the document may not cover current contingencies; how does one proceed to determine whether a statute is constitutional. Devin Watkins offered a nice example re: 2nd Amendment the other day. One can readily present similar scenarios in the area of communications / privacy, etc.

So: Where does interpretation become construction? Surely, you are not advocating a totally positivist approach here.

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gabe
on August 06, 2015 at 15:25:47 pm

Dear Gabe,
Thanks for your question. The paper to which I refer in the post states that judges were understood to have methods of clarifying terms that might appear ambiguous or vague. Thus, if the rules of interpretation allow, judges might well consult conventions and other aids. But that process is interpretation: interpretive rules deemed applicable at the time a provision was framed legitimately contribute to its meaning. Construction appeals to something extrinsic to meaning and I argue that construction had no place in the concept of judicial power. Judicial power of course is a legal term of art whose meaning necessarily requires considering how it operated in its legal context. I provide that context in my paper. I hope this helps. --John

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John O. McGinnis
on August 06, 2015 at 16:04:49 pm

What is an originalist jurist to do when given a case in which "cruel and unusual punishment" is to be determined?

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Ali Bertarian
on August 06, 2015 at 16:31:04 pm

What if you have two equally plausible meanings of the text. Everyone agrees that both cannot be the true meaning, but one of the two must be, but neither is more plausible then the other given the historical record and applying all the standard judicial cannons. What does your theory suggest in such a case? Should any legislation that violates one but not both of the possible interpretations be constitutional? So this would in practical effect mean that both of the possible meanings would be considered “correct” by the court even though everyone agrees this cant be the case of what was originally meant. It also VASTLY expands the power of the federal government because any power that could possibly be interpreted more expansively (even interpretations that are mutually exclusive) would all be considered to expand the power of the federal government. Meanwhile every restriction on the federal governmental power would be drastically limited. Is it possible that speech in the first amendment really meant spoken words? Then no protection for freedom of expression, and so on. I cant imagine that is what the founders were thinking given what a limited view of role of the federal government. Yes some of this can be resolved with cannons that will exclude some interpretations, but can you really say that there isn’t a large set of plausibly valid interpretations even after applying the cannons?

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Devin Watkins
on August 06, 2015 at 17:02:53 pm

I would not accept the premise that the language you quote is as vague as modern interpreter might think. The Bill of Rights represented the rights of Englishmen and thus its provisions had history and context that gives them meaning. I am not an expert on the Eighth Amendment, but I would refer you to this paper by John Stinneford, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344, It shows that the Eighth Amendment prevented only new kinds of punishments that were cruel. This intepretation would substantially narrow the meaning of the provision and make it more determinate.

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John O. McGinnis
on August 06, 2015 at 20:46:15 pm

Isn't this just the life, liberty and the pursuit of haopines for all men? Under that idea, this is barely interpretation. Our government was the one who originally interfered with marriage by giving the insitution extra rights and priveleges above and beyond that of those who are unmarried.

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Mike
on August 07, 2015 at 00:06:51 am

John--

What is the originalist to do, under those circumstances in which the meaning of the words, phrases, or sentences of the original document were contested at the time at which they were written. What, for example, are we to do when James Madison and Alexander Hamilton disagreed over the meaning of a phrase or term in the Constitution?

If Jack Rakove is correct--and to my reading of Madison he is--then don't we have to defer to the original meaning of the text as it was understood by the majorities in each state who ratified the Constitution? Assuming we can reconstruct that--I think in many cases we can, but by no means all--what do we do if the plain, commensensical meaning of the text appeared one way to, say, the Pennsylvania majority, but a different way to the majority in, say, Virginia?

I suspect my understanding of contemporary originalism is not as robust as it could be. But on the other hand, I would bet that is true for many of the educated and thoughtful folk who follow this blog. These questions have puzzled me for some time, and I present them honestly--as questions whose answers I do not know, and on which I have no firm position.

Thanks in advance for whatever assistance you can provide.

Kevin

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Kevin R. Hardwick
on August 07, 2015 at 00:27:43 am

John--

I think you are correct here with regard to the language of "cruel and unusual punishment." I am very uncomfortable, however, affirming that the language of the Bill of Rights, in toto, reduces in any simplistic fashion to "the rights of Englishmen."

My understanding of the origin of the language in the Bill of Rights is that its roots were considerably more complex than merely the English commonlaw--especially given the fact that there was not one commonlaw in colonial British America, but rather a multiplicity, corresponding to the individual colonial societies that comprised the British empire. Remember that technically speaking, the commonlaw of England did not extend outside of England--no English commonlaw court had jurisdiction in the colonies. Colonial law evolved independently in each of the colonies--derivative in every instance from English practice, but not identical.

Moreover, much of the language of the Bill of Rights stems, somewhat willy-nilly given the hectic process in which it was assembled, from various state Declarations of Rights. None of these straightforwardly replicated the English understanding of the rights of Englishmen. George Mason, just to take one example, understood himself to be articulating the rights of citizens of Virginia, not England. In his understanding, at least as I read him, there is a fair bit of natural law thinking. In New England Declarations of Rights, unsurprisingly, there is a dissenting religious dimension that is largely missing both from English law but also from that of the Southern states.

I am not sure it matters for the point you are making here, for what that is worth.

All best wishes,
Kevin

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Kevin R. Hardwick
on August 07, 2015 at 15:33:30 pm

John:

Thanks, it was helpful and Kudos to you and Mike for raising the issue to some prominence. As one thinks about it - it is CRUCIAL - whether resolvable or not.

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gabe

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