Off to a bad start: Originalism and the Good Constitution

February 23

I am on the plane returning from the most excellent “Originalism Works-in-Progress Conference” at the University of San Diego. It was organized my friends Michael Rappaport and Michael Ramsey and was of extremely high quality. I am now beginning to read John McGinnis and Mike Rappaport’s book Originalism and the Good Constitution for my Georgetown seminar, “Recent Books on the Constitution.” I held off reading it until now because I like to read the books along with my students. Unfortunately, this one gets off to a bad start when describing alternative approaches to originalism. And by “alternative approaches” I mean mine. A very problematic paragraph appears on page 8. Here it is in its entirety:

More recently, a new form of originalism, which we call constructionist originalism, has arisen in response to this critique of original public meaning. Constructionist originalists argue that interpreters are bound by the Constitution’s original meaning only when it is clear. [citing to my Restoring the Lost Constitution, and to Keith Whittington.] When a provision is ambiguous or vague, interpreters may resort to nonoriginalist materials to determining the Constitution’s meaning. But constructionist originalism raises its own difficulties because it significantly reduces the scope of originalism. Indeed, some theorists have questioned whether constructionist originalism’s embrace of nonoriginalist methods to resolve ambiguity and vagueness does not largely collapse originalism into living constitutionalism. Constructivist originalism also leaves unanswered the question of what replaces originalism when originalism does not apply.

Here are some of the problems raised by this passage:

“More recently, a new form of originalism, which we call constructionist originalism, has arisen in response to this critique of original public meaning.”

Argument by labeling is always a slippery tactic. One must be very cautious when inventing labels for one’s intellectual adversary lest you let the label do the substantive work. Otherwise, the result is innuendo rather than argument. I call myself an originalist (of the original public meaning variety). Period.

“Constructionist originalists argue that interpreters are bound by the Constitution’s original meaning only when it is clear.”

Insofar as I am the intended object of this description, this is inaccurate. As feared, the label is misleading. I propose no such “clear statement” approach to constitutional interpretation. To the contrary, I maintain that judges and other constitutional actors should strive to discover and implement the whole of the Constitution’s text, even the parts that some, like Robert Bork, object to as too abstract, uncertain, or mere “inkblots.” The “lost Constitution” to which I refer are the clauses and amendments that have been rendered inoperative by “interpreting” them out of existence. But I do know of many self-described “judicial conservatives,” such as J. Harvie Wilkerson, who take the position that courts should only invalidate legislation that is clearly prohibited by the text of the Constitution, and Congress and state legislatures otherwise have unlimited power to legislate as they wish. I oppose this “clear statement” approach.

“When a provision is ambiguous or vague, interpreters may resort to nonoriginalist materials to determine the Constitution’s meaning.”

This too is inaccurate. On my account, the problems of ambiguity and vagueness are distinct. Ambiguity refers to words that have more than one sense or meaning (e.g. the word “arms” can refer to weapons or the limbs to which our hands are attached). Vagueness refers to words that have a discernible core meaning and a more uncertain penumbral meaning (e.g. the exact point where a someone ceases to be considered “short” and is “tall” may be unclear). Although there may be relatively rare cases where ambiguity – or multiple senses – is irresolvable, in most all instances in the Constitution, such ambiguities are resolved by intra- and extra-textual communicative context. And we need not be completely certain to adopt the meaning that is supported by the weight of available contextual evidence.

In contrast, whether or not a particular object or action lies within the penumbra of a vague term or phrase (e.g., an “unreasonable search”) may indeed be hard to ascertain. When this is so, we need to resort to extra-constitutional implementing doctrine or “methods” – for example, by adopting a presumption of constitutionality or, alternatively, a presumption of liberty – to resolve a constitutional issue. But this resort is only warranted when the meaning or communicative content of the text is insufficient on its own to resolve a particular application. So it is also inaccurate to say that “interpreters may resort to nonoriginalist materials to determine the Constitution’s meaning.” No, the “meaning” or information conveyed by the text of the Constitution may run out before we know exactly what to do, in which case we need to turn from interpretation to how we put that meaning into effect. I and others call this activity “constitutional construction,” but you can label it what you will.

“Constructivist originalism also leaves unanswered the question of what replaces originalism when originalism does not apply.”

This is a larger topic than I can address here, but I think it is more accurate to say that original meaning originalism leaves unanswered the question of what exactly supplements, not “replaces,” the meaning of the text when it is insufficient to decide settle a particular constitutional question. But whatever method is adopted, originalists maintain that it must not be inconsistent with what the Constitution does say.

In any event, when you criticizes a rival approach, it is incumbent upon you to try to characterize the approach as accurately as possible lest your audience be misled, or perhaps conclude that you do not fully grasp the position with which you are disagreeing.

Of course, I do have some idea of where all this is going: to McGinnis and Rappaport’s theory they call “original methods originalism.” To my mind, their approach combines (a) original meaning originalism where original methods do inform the communicative content of the text at the time it was enacted, with (b) their own theory of constitutional construction, which is to follow the other methods of construction that were in effect when the text was adopted. But then that would make them “constructivists” too, as indeed everyone is who attempts to follow the meaning of the text by employing implementing doctrines when that meaning runs out.

At any rate, I am only on page 8. Perhaps this is just an unfortunate paragraph. I trust and hope the book will get better in Chapter 8, which is assigned for next week, when it deals with these issues at greater length (though a brief glance was not encouraging). But even if the position they critique is more fairly described later, there is no excuse for an introductory paragraph that is this inaccurate.

One does not want to be a “straw man originalist,” does one?

[Typos corrected, and the language of some passages clarified, after I got home.]

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).
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Eugene Volokh · February 22