Now, someone who objects to Originalism might say, ". . .the important provisions, like
equal protection, freedom of speech, the extent of legislative power, these provisions are
highly indeterminate and therefore, the original public meaning of the Constitutional text
can't do much work.”
You can't determine that the Constitutional text is indeterminate without doing the originalist
work.
And, I believe that for may provisions of the Constitution, once we do the work, the
text is much more determinate than it might seem to a progressive critic of originalism
engaged in the method of armchair originalism.
First thing I think that is important is to remember that most of the Constitutional text
is highly determinate.
Most of the Constitution consists of procedures and institutional rules that establish the
basic framework of government.
So, the idea that legislation has to be passed by the House and the Senate and that these
two bodies have compositions that is determined by a set of rules and that there's a veto
power.
All of these basic structural elements of the Constitution are highly determinate.
This is sometimes called the hardwired Constitution and it's the most important part of the Constitution.
It is the hardwired Constitution that determines the basic structure of our republic.
Let's take the equal protection clause as an example.
Typically, living constitutionalists say, "Equal protection.
That means a principle of political and social and economic equality and the content of such
a principle is highly indeterminate."
But is that what the text means?
The phrase is not that no state may violate the equality of citizens.
The phrase requires states to respect the equal protection of the laws.
The equality interpretation of the equal protection clause was introduced by the courts, by living
constitutionalism.
And the shape of the equal protection clause, I think, is much more determinate than many
critics of originalism assume.
Nonetheless, I think that it's highly likely that at least some Constitutional provisions
are significantly under determinate and that's why methods of constitutional construction
are so very important.
We need methods of constitutional construction that constrain judicial discretion.
I think originalists have a lot of ways of dealing with under determinacy but this is
an exciting area.
This is an area where originalism is still working itself out and I, myself, haven't
decided what approach is the best approach.
What I do know is that there are ways to engage in constitutional construction that do not
involve giving just discretion, policy making power to judges.