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.
My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November).
The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.
While the book offers this new argument, it does quite a bit more, exploring various issues of originalism based on the book’s overall theory. First, the book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution. This interpretive approach is defended both as the most accurate way of determining the Constitution’s meaning as well as the method that will lead to the best consequences.