Thanks for joining this episode of the No. 86 lecture series, where we discuss Original
Public Meaning Originalism and Constitutional Construction.
Today’s episode features Professor Randy E. Barnett, who is the Patrick Hotung Professor
of Constitutional Law at the Georgetown University Law Center, where he directs the Georgetown
Center for the Constitution.
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
What is “new” Originalism - is it different from the Originalism you have described in
the previous episodes?
The new originalism really is just original public meaning originalism.
With the following additional insight.
And that is the original public meaning of the text only takes you so far to resolve
actual cases and controversies.
That sometimes more is required to apply the text to particular cases and controversies.
Where in the text, for example, is more general or abstract.
And that additional step itself is not itself interpretation.
That additional step is what is called constitutional construction.
You can call it anything you want.
You can call it constitutional implementation if you want to.
But whatever it is, it's an additional step besides interpretation.
And that's the new originalism.
What sources can be used for original public meaning originalism?
To identify the original meaning of the text, you look at any evidence of what the public
meaning of the words were at the time they were enacted.
Obviously that would include debates that were taking place about word choices that
were going to go into the text.
But it also includes, even mundane items like private correspondence, private letters, newspaper
stories, whatever that would tell you for example, what did commerce mean at the time
the commerce clause was enacted?
Did commerce include any gainful activity?
Did commerce mean intercourse and did intercourse mean any social interaction?
Is that what commerce meant?
Well you look at evidence to see what commerce meant and for example you'll see that quite
frequently, very, very often, commerce is distinguished from agriculture and manufacturing.
You'll see agriculture, manufacturing and commerce telling you that the word commerce
is different than the words agriculture and manufacturing.
They convoke different activities.
Evidence like that can come in a variety of forms.
It can come in the debates about the commerce clause, but it could also come in private
correspondence and newspaper articles that use the word commerce and distinguish it from
other types of activities.
What about constitutional construction?
Is that necessarily in tension with Originalism?
For over 15 years, I thought that the activity of constitutional construction was inherently
non-originalist because I thought the term originalism was limited to the activity of
interpretation.
Identifying the original public meaning.
Applying the original public meaning, not being interpretation also would not be originalist.
I no longer think that that's right.
I now think that constitutional construction as an activity should also be originalist.
It should be originalist in the following sense.
When engaged in constitutional application, one needs to be faithful to the original meaning
of the text.
And what does that mean?
Faithfulness requires that one adhere to the original function, purpose, object, end or
goal of the provision of the text that we're talking about.
So constitutional construction should be as constrained by original purpose or original
ends or original goals as constitutional interpretation is constrained by original meaning.
Both together amount to a unified approach to originalism that unifies interpretation
with construction and says, "They're both originalist."
Here's another way to look at it.
Constitutional interpretation concerns identifying the original meaning of the letter of the
constitution.
Constitutional construction involved applying that letter of the constitution consistently
with its spirit.
And when you can find the original letter with the original spirit, that is a unified
approach to originalism.
Can you explain the difference between this good faith originalist construction and living
constitutionalism?
Good faith originalist construction is confined.
Constitutional construction needs to be done in good faith.
And faithful constitutional construction is confined to effectuating the original purpose,
the original function of the text.
What living constitutionalists sometimes do is take the original purpose of the text and
use that to supersede the original meaning of the text itself.
So for example, if the original purpose of the text of the second amendment, let's say,
was somehow to secure public safety, they will say, "Well, if now we think that public
safety requires that nobody have a gun."
They would then claim that's consistent with the original purpose of the second amendment.
But faithful constitutional construction must be faithful to the text of the constitution.
It cannot be used to undermine or overwrite that text.
Which is essentially living constitutionalism.
So faithful constitutional construction only applies when there is some uncertainty in
the application of the original meaning of the text.
So the text itself isn't telling you exactly what to do in a particular case.
Faithful construction then fills in that gap .but the activity of filling in the gap cannot
properly be used to override the original public meaning of the text that's being applied
to a particular case.
Constitutional construction has become controversial amongst originalists because some originalists
believe it's so open ended that it basically undermines the appeal of originalism itself.
If constitutional construction were done in a completely open ended way I would agree
with them.
But constitutional construction should not be done that way.
Constitutional construction should be done in a constrained way.
Constrained by the original purpose of function of a text, not just by its original meaning.
Constitutional construction whatever, you call it is inevitable.
Where the constitution speaks in broader or more general terms, you need implementing
doctrines to apply that text to particular cases and controversies so judges may treat
like cases alike.
The activity of developing those intermediary doctrines, to apply the text to cases is constitutional
construction, whether people want to call it that or not.
But the doctrines that are developed in order to implement the original meaning of the constitution
must not only be consistent with the original meaning of the text, it must be faithful to
the original meaning of the text.
Meaning faithful to the reasons why the text was written the way it was written.
Interpretation is the activity of identifying the communicative content of the meaning of
the text.
What information is actually contained and communicated by the words on this page.
What information is actually contained and communicated by the words in this little book.
Construction is the activity of putting these words into legal effect.
Giving them a legal effect.
Applying them to cases and controversies when that activity is going to require more than
simply reading the words off the page.
A final but important question - Is Originalism adequate to address new and changing circumstances?
Once you distinguish between interpretation and construction, interpretation meaning identifying
the communicative content of the words of the Constitution from the activity of applying
that content to particular cases and controversies, then you see that originalism can provide
for change, but because the application to particular situations is always going to be
different, you take the original meaning of the text and then you develop implementing
doctrines to apply it to new circumstances.
Those implementing doctrines, being constitutional constructions themselves, can change as circumstances
change.
That's the true living Constitution.
It's living constitutional law to implement a fixed constitutional text.
Most of the debate about whether originalism will keep up with changing social norms assumes
that the text of the Constitution itself is something that governs changing constitutional
norms, rather than the text of the Constitution is largely structural, and it allocates power
to various other branches of government to adjust to changing in constitutional norms,
like, for example, a popularly inactive Congress or a popularly inactive state legislatures.
It's popularly inactive legislatures, through their legislation, empowered by a Constitution,
that responds to changing social norms, not the Constitution itself.
The Constitution may be a good Constitution or at least a good enough Constitution to
be legitimate.
That doesn't mean it's a perfect Constitution.
For example, it may be that it's too hard to amend the Constitution, that somehow the
rules governing amendments should be changed to make them easier, but that isn't about
what the Constitution means.
That's about whether the meaning of the Constitution is good enough and should be changed, so,
therefore, that is not a challenge to originalism itself.
Thank you for listening to this episode of the No. 86 Lecture series: Continuing the
Conversation in the 85 Federalist Papers about Originalism.
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discussion and critical reflection relative to how each subject is widely understood and
taught in law schools and among law students.
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