The Constitutional Interpretation/construction Distinction: A Useful Fiction

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INTRODUCTION

Since the 1990s, theories of constitutional interpretation have experienced a sea change. Some scholars have claimed that the old debate between originalism and nonoriginalism has gone by the wayside and that it is less accurate nowadays to describe the differences between these theories of American constitutional interpretation in terms of originalism and "non" anything. (1) Others have suggested that the differences are better conceived of in terms of variations within the originalism family. For example, Jeffrey Rosen in 1997 exclaimed, "We are all originalists now." (2) More recently, that notion was repeated by some (3) in response to the Supreme Court's decision in District of Columbia v. Heller. (4) Even so, not all agree. (5)

Ultimately, differences between originalism and nonoriginalism remain. (6) In fact, not only are there a wide range of alternatives to originalism, (7) there are a number of variations within originalism itself. (8) New Originalism has emerged as one such variation. One of the fundamental distinctions between Old and New Originalism is that the former tended to focus on the original intentions of the authors of a particular legal text whereas the latter tends to focus on the "original public meaning" of the particular legal text, which is the meaning that the intended audience would have assigned to a given word, phrase, or sentence at the time it was drafted. (9) The full contours of New Originalism as distinguished from Old Originalism are beyond the scope of this paper. Generally speaking, however, New Originalism explains the theory of American constitutional interpretation as something of a dual process: First, one must look to the original public meaning (interpretation) and when that runs out, look to other sources that might reliably fill out the contours of that interpretation (e.g., history and tradition surrounding the text, the structure of the text, court precedent, etc). (10) The second part of this process is what is often referred to as "construction."

This is unobjectionable so far as it goes. It suggests that the break from Old to New Originalism was something of a natural development. Think about it: the originalism that thrived in the 1960s through the mid-1980s concentrated on (at least) two commitments: (1) pushing against the doctrinal developments of the Warren Court and (2) constraining judicial activity by limiting judicial discretion. (11) By the early 1990s, the transition from the Burger Court to the Rehnquist Court made the judicial opinions that old originalists were railing against less frequent, thereby making these two commitments less necessary. (12) What surfaced afterward and replaced the commitment to subverting "activist" theory (and practice) was a need to develop a positive constitutional doctrine that was (1) based on the text of the Constitution and (2) capable of guiding the actual activities of federal judges. Indeed, as conservatives came to dominate the Supreme Court, originalism needed to provide a workable theoretical foundation to support majority opinions, i.e., create a constructive governing philosophy. To a large extent, I think New Originalism in general, and the constitutional interpretation/construction debate in particular is responding well to that call. However, it is hardly an effort without strife, both internal and external. Even among New Originalists, the debate over where interpretation ends and where construction begins is contested, as is the battle over whether the judiciary plays a dominant role or subservient role in the construction effort.

The source of the conflict, ironically enough, is located in a theoretical position that nearly all New Originalists share--namely, that constitutional interpretation requires some degree of judgment. The interpretation/construction distinction admits that at a certain point interpretation (original public meaning) exhausts itself and can no longer provide the linguistic cues necessary to explain the text or guide our application of it, and that when original public meaning runs out, constitutional meaning must be constructed through the exercise of judgment. …