With the impending confirmation hearings of Judge Neil Gorsuch, we will soon experience a national debate on the nature and merits of originalism. One question that invariably arises is how definitively originalism provides answers to constitutional disputes, and what judges should do when the information communicated by the original public meaning of the text is not enough to resolve a particular case. Some originalists insist that, when this occurs, judges have no choice but to engage in what is called “constitutional construction” to give what the Constitution does say legal effect. But does such a shift in method mean that judges are then free to do whatever they like? And, if so, does this not undermine the constraint that adhering to original meaning imposes on the judiciary?

Evan Bernick and I have posted the first of a projected three-article series (and eventual book) on Good Faith Constitutionalism, in which we contend that each of the branches–the judiciary, legislature and executive–have their own respective duties of good faith when exercising the discretion they are delegated as agents of the people. Our first paper is addressed to the judicial branch, and is entitled, The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction. The Abstract explains the idea:

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the judge-constraining virtues of originalism and exposes the citizenry to arbitrary judicial power. In this Article, we respond to this challenge with a theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” Our theory draws upon a familiar concept in contract law that is used to handle the problem of contractual discretion: the duty of good-faith performance.

We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens — a relationship characterized by discretionary powers in the hands of officials and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given them in “this Constitution” in good faith. This means that judges engaging in constitutional construction or implementation must seek to give legal effect to both the Constitution’s “letter” (consisting in its original public meaning) and its “spirit” (consisting in the original function or purpose of its particular provisions.)

Therefore, when original meaning interpretation alone is not enough to resolve a controversy, the judicial duty of good-faith construction consists in (a) accurately identifying the spirit of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists of a court exploiting the discretionary process of implementing the Constitution by evading either its original letter or spirit (or both) to recapture an opportunity forgone by adopting the written Constitution as amended.

I am thrilled that, in June, Evan will be joining me at Georgetown Law for a two-year appointment as a Visiting Lecturer and a Fellow of the Georgetown Center for the Constitution.