In a new article by Gary Lawson discussing Jim Fleming’s book on constitutional theory, Lawson takes issue with a well known claim by Keith Whittington about the new and old originalism that Fleming accepts. (For one discussion of the new originalism, see here.) Whittington had claimed in 2004 that:
The new originalism is distinct from the old in that it is no longer primarily a critique of the Warren Court’s rights jurisprudence. The new originalism is more comprehensive and substantive than the old. It is more concerned with providing the basis for positive constitutional doctrine than the basis for subverting doctrine.
Thus, I think Professor Fleming gets it precisely backwards when he characterizes the new originalism as a move from anti-Warren Court tirades to a governing judicial philosophy. He has taken bad guidance from Keith Whittington, who postulated – with absolutely zero evidence that I can see – precisely such a move as the explanation for the emergence of the new originalism in the Reagan and post-Reagan years. That is the sort of thing that sounds nice to political scientists who like that kind of explanation. It just happens to be, I believe, wildly false, and indeed backwards, as an account of the emergence of the new originalism.
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.
I am very pleased to announce that Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, will be blogging @ Law and Liberty for the month of April. I know that we are in store for an interesting array of posts on constitutional jurisprudence and other subjects. Keith's books include Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas, 1999); Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007), and American Constitutionalism (Oxford, 2012) (with Howard Gillman and Mark A. Graber). He is currently finishing a history…
When the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan- the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and give each provision within that document the full effect intended by the Framers. The tacit postulates yielded by that ordering are as much engrained in the fabric of the document as its express provisions, because, without them, the Constitution is denied force, and often meaning.- William H. Rehnquist
Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting).
Today, as threatened in an earlier post, a few more words on competition, the Founders, and the Constitution and its federalism. What warrant do we have to read modern-day competitive federalism theory back into the Constitution?