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The Judiciary Should Interpret, Not Construct, the Constitution

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.

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on March 24, 2015 at 00:36:09 am

My initial impression about this controversy is that something fishy is going on. It seems to be a coincidence that the two verbs "construct" and "construe" correspond to the same noun: construction. It seems like a clever trick to suggest that the process of "construing" statutes involves "constructing," merely because those two words happen to share a common noun.

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Andrew
on March 24, 2015 at 09:14:48 am

[…] The Judiciary Should Interpret, Not Construct, the Constitution […]

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How Unspeakably Bad to Be Relatively Worse Off - Freedom's Floodgates
on March 24, 2015 at 12:36:08 pm

"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."

Absotively!!!
I'll take it a bit further and assert a) that there may be very little that is irreducibly ambiguous and b) what ambiguity is contained *within* the text (and not solely in the philosophical predilections of the Black Robes) was 1) known to the Drafters (and Ratifiers), 2) carefully crafter to achieve a *good result* - ratification as a result of compromise, and 3) intended as a means of deferring action on contentious issues until such time as the LEGISLATIVE Branch, acting at the behest of, or in response to the people could correct, amend or modify the understanding either through statute or Article V processes.

Remember, that this government was *intended* to be one of Legislative supremacy not Judicial.

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gabe
on March 31, 2015 at 12:45:31 pm

[…] The Judiciary Should Interpret, Not Construct, the Constitution […]

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An Active, But not an Activist, Judiciary - Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.