Why is it so hard to define intellectual movements in terms of what unites rather than divides them?
My recent paper, The Duty of Clarity, has substantial implications for an important current controversy in originalist theory—whether the judiciary should engage in construction as opposed to interpretation of constitutional provisions. The judicial duty of clarity suggests that the judiciary cannot engage in construction during the course of judicial review. Construction takes place only when a provision is unclear, and the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution.
The controversy over the role of construction and interpretation arises from recent developments in originalist theory. Some theorists, often called the New Originalists, like Randy Barnett, Larry Solum, Jack Balkin, and Keith Whittington, have sought to recast originalism by making a strong distinction between language in the Constitution that is clear and language that is not. For clear language, interpretation governs, and the process of interpretation seeks to discover the semantic meaning of a provision at the time it was enacted. Unclear language, in contrast, creates a so-called Construction Zone, when conventional legal meaning runs out. Within the Construction Zone, the constitutional decision maker must necessarily appeal to materials extraneous to the semantic meaning of the Constitution. As a result, according to many New Originalists, the Construction Zone allows the judiciary to invalidate legislation even when the semantic meaning of the Constitution does not require invalidation.
If the New Originalists are correct that substantial gaps in the legal meaning of the Constitution exist and warrant construction, an important further question is what actors in the constitutional system should do the constructing. As I have shown in my paper, the judiciary can invalidate legislation only based on a meaning that it finds to be clear. Thus, the judiciary cannot engage in construction in the course of judicial review, because it would then not be enforcing a clear meaning of the Constitution. But as I note in the paper the judiciary has many methods that can help clarify the meaning of a provision in the course of interpretation.
In other words, if legislation can fit within the ambit of the Construction Zone, the duty of clarity would not permit the Court invalidate it. Or to put it another way, a constitutional conclusion that is within the Construction Zone cannot be in “manifest contradiction” to the Constitution’s meaning. Under the duty of clarity the judiciary must uphold it.
In short, if a central thesis of the New Originalists—that interpretation runs out when a provision is irreducibly ambiguous or vague—is accurate, only the legislature rather than the judiciary can “construct” the constitutional order when the meaning of the Constitution is unclear. The judiciary’s role in the course of judicial review is confined to interpreting the Constitution. That is an important role, but one circumscribed by law.