[New matter: For a delightful explanation of why we should believe that the U.S. Constitution (like Acts of Parliament) came embedded in a long-standing manner of thinking about the nature and sources of law (including rules of construction) go here to read the recent sermon by Sir Roger Scruton to the assembled lawyers at the Temple Church in London.]
Back in my law school days no one mentioned what is today the leading school of constitutional interpretation: originalism. This shouldn't be surprising because it really didn't exist in the late 1970's. Today, finding one's constitutional starting point by discerning the original public meaning of the constitutional text seems almost commonsense but back then it was simply not done. Rather, constitutional litigation was conducted in terms of an amalgam of snippets of text, precedent, and policy, not necessarily in that order.
I won't belabor the ongoing legal realist objection to originalism that relentlessly (if not tendentiously) argues that the quest for historical meaning is no more than a pretext for [fill in the blank, all of it bad*]. I won't belabor legal realism because, notwithstanding the reams of articles published in its name, it remains only a pretense of philosophical inquiry. As the step-child of American pragmatism, legal realism can claim neither originality nor depth of understanding.
In any event, Originalism 1.0 has matured as scholars concerned about the Constitution as an authoritative text have worked to expand the concepts and tools relevant to identifying its meaning. But original public meaning isn't limited to the meaning of specific textual terms. It includes, or so Randy Barnett and Evan Bernick argue, original rules of construction. Construction, as my Contracts II students will learn, is the process of determining the legal meaning of text when the text is uncertain or unclear with respect to a particular question. No text can specify the result in every conceivable circumstance. Thus, when confronting a textual hiatus, interpreters of an authoritative text must either throw up their hands and admit defeat or apply a principled "rule of construction" to extend the text to the unaddressed situation. What they should not do is decide on their own initiative and in their own judgment what the answer should be. After all, it's the parties' contract, not a judge's.
In The Letter and the Spirit: A Unified Theory of Originalism (download here), Barnett and Bernick assert and argue for the conclusion that the original public meaning of the Constitution would have included a robust set of rules of construction. Such a conclusion doesn't surprise me because there were certainly a substantial set of rules of construction for contracts deeply embedded in the English common law of the time.
Without using the term, I utilized the concept of a constitutional rule of construction when I argued here and here for a legitimate place for the authority of precedent in subsequent constitutional adjudication. Barnett and Bernick, of course, develop the historical and political warrant for such rules in depth and so it is to their work I heartily direct my readers' attention.
* For an exploration of why the Progressive misreading of originalism is just that--a misreading--see Lawrence Solum, Surprising Originalism (download here).
Back in my law school days no one mentioned what is today the leading school of constitutional interpretation: originalism. This shouldn't be surprising because it really didn't exist in the late 1970's. Today, finding one's constitutional starting point by discerning the original public meaning of the constitutional text seems almost commonsense but back then it was simply not done. Rather, constitutional litigation was conducted in terms of an amalgam of snippets of text, precedent, and policy, not necessarily in that order.
I won't belabor the ongoing legal realist objection to originalism that relentlessly (if not tendentiously) argues that the quest for historical meaning is no more than a pretext for [fill in the blank, all of it bad*]. I won't belabor legal realism because, notwithstanding the reams of articles published in its name, it remains only a pretense of philosophical inquiry. As the step-child of American pragmatism, legal realism can claim neither originality nor depth of understanding.
In any event, Originalism 1.0 has matured as scholars concerned about the Constitution as an authoritative text have worked to expand the concepts and tools relevant to identifying its meaning. But original public meaning isn't limited to the meaning of specific textual terms. It includes, or so Randy Barnett and Evan Bernick argue, original rules of construction. Construction, as my Contracts II students will learn, is the process of determining the legal meaning of text when the text is uncertain or unclear with respect to a particular question. No text can specify the result in every conceivable circumstance. Thus, when confronting a textual hiatus, interpreters of an authoritative text must either throw up their hands and admit defeat or apply a principled "rule of construction" to extend the text to the unaddressed situation. What they should not do is decide on their own initiative and in their own judgment what the answer should be. After all, it's the parties' contract, not a judge's.
In The Letter and the Spirit: A Unified Theory of Originalism (download here), Barnett and Bernick assert and argue for the conclusion that the original public meaning of the Constitution would have included a robust set of rules of construction. Such a conclusion doesn't surprise me because there were certainly a substantial set of rules of construction for contracts deeply embedded in the English common law of the time.
Without using the term, I utilized the concept of a constitutional rule of construction when I argued here and here for a legitimate place for the authority of precedent in subsequent constitutional adjudication. Barnett and Bernick, of course, develop the historical and political warrant for such rules in depth and so it is to their work I heartily direct my readers' attention.
* For an exploration of why the Progressive misreading of originalism is just that--a misreading--see Lawrence Solum, Surprising Originalism (download here).
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