Since my book, Restoring the Lost Constitution, was first published in 2004, I have insisted that, because constitutional construction occurs when original meaning “runs out,” the term “originalist” is properly limited to the activity of interpretation and, correlatively, the activity of construction is unavoidably “nonoriginalist.” For some originalists and nonoriginalists alike, while original meaning interpretation may close the door for unwarranted judicial discretion, allowing for the legitimacy of nonoriginalist constitutional construction opened the window. While nonoriginalists cheer this as showing that originalism differs little in practice from living constitutionalism, this has led some originalists to deny or disparage the distinction itself.
Although I still believe that the activity of interpretation is distinct from that of construction or implementation, in the course of writing a new paper with Evan Bernick, I have come to reconsider the claim that only constitutional interpretation can be “originalist.” I now believe that my prior insistence that only constitutional interpretation can be “originalist” was mistaken. I have concluded that constitutional construction can be originalist as well.
In this paper, Evan and I retrace the intellectual history of originalism as a theory from when it was first identified in 1980 by Paul Brest, and present a “unified” theory of originalism that embraces both interpretation and construction. It is called The Letter and the Spirit: A Unified Theory of Originalism. In this paper, we draw heavily on two ideas: First, that ours is a “fiduciary constitution,” which establishes a relationship of trust between the people and their agents in government (a position I argued for in Our Republican Constitution); and second, that the “duty of good faith performance of contracts” provides important guidance as to how the discretion granted by the text of the Constitution to implement its terms should properly be constrained. Here is the abstract:
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 constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.Our theory draws upon a familiar common-law concept long used in contract law to handle the problem of opportunistic abuse 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” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text.)Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty of good-faith originalist construction. Good-faith construction consists in (a) accurately identifying the spirit—or original function”—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 in opportunistically using the discretion inherent in implementing the Constitution to evade either its original letter or spirit (or both) in pursuit of their own extralegal preferences.
Download it here.