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Tuesday, February 21, 2017

Barnett & Bernick: Good-Faith Constitutional Construction

I spent last weekend at the University of San Diego’s annual originalism works-in-progress conference, which was, as always, excellent and thought provoking. In particular, Michael McConnell presented a draft of his very, very impressive paper The Logical Structure of Article II, and Mitch Berman successfully parried all comers in defending his insightful paper Our Principled Constitution.   I am moved to comment briefly, however, on another paper—Randy Barnett and Evan Bernick’s The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction—and particularly on some aspects of the discussion that ensued.

The paper attempts to flesh out the undertheorized “construction zone” in New Originalist interpretive theory. As a quick refresher, central to that theory is the “interpretation-construction distinction,” which posits two distinct phases of constitutional explication. In the first, “interpretation,” phase, the judge endeavors to discover, as an empirical matter, the text’s “communicative content” at the time of ratification. In the second, “construction,” phase those empirical semantics should constrain the text’s “legal content” as applied to a discrete controversy.

Barnett & Bernick point out that this “construction” phase has drawn a good deal of criticism from other originalists for the latitude it seems to afford judges, particularly in cases where no determinate communicative content exists to provide constraint. They thus hope to use the concept of fiduciary good-faith to cabin potential judicial freewheelers in the “construction zone.” The idea is that judges should construct legal meanings that, to the extent possible, harmonize and promote the Constitution’s “letter” and its “spirit.” To put it (perhaps) in Scott Shapiro’s terminology, the judge should make a genuine effort to carry out the framers’ and ratifiers’ “plan.”

I should first say that I think this makes a good deal of sense, and I’m all for a good-faith duty in constitutional interpretation. But I have to say the paper and discussion left me wondering a little bit about what makes this an “originalist’—or more specifically a “New Originalist”—approach.  

On the general question, it might be a broadly “originalist” methodology in a number of ways. At the most basic level, it could be that government actors as “fiduciaries” and a corresponding “duty of good-faith” were well understood conceptions at the founding, and thus form part of a contingent justification for judicial review. Thus, good-faith might be something like an “original method” of constitutional construction. At perhaps a more specific level, good-faith might require that judges orient themselves towards constitutional semantics in a particular way—a way that requires substantial deference to predominant historical meanings. In this way, the theory is originalist in that it redescribes the duty of historical constraint using terms with more robust substantive meanings from other areas of legal practice. This might be more consistent with a New Originalist or “original public meanings” approach.

This second possibility only seems to work, however, when the “interpretation” phase yields some determinate measure of communicative content, to which the judge owes fidelity. And, again, the truly problematic areas of construction seem to be those where that communicative content has run out. In response to some commentary along these lines, Barnett seemed to suggest that the “spirit” can supplement the “letter” of the text during the “interpretation” process, and that this might thicken up the communicative content enough to provide meaningful constructive constraint. This is where I get a little bit confused.

I had thought that the interpretation-construction distinction was meant to separate the “empirical” from the “constructive” aspects of constitutional explication—that the former process revealed historical “facts,” which could constrain the latter. While I have long had doubts that even the “letter” could produce these sorts of facts, I am quite sure that establishing the “spirit” of the text is a constructive, and not an empirical, enterprise.   While there may be a fact of the matter about historical language conventions, I cannot suspend disbelief enough to imagine discovering—as an empirical matter—some unspoken semantic “truth” that the words failed to capture. If the “spirit” is part of the text’s communicative content, then I think the interpretation-construction distinction collapses—or, as some critics have said for years, “it’s all construction.”

It could be that Barnett & Bernick were just wrong to concede in discussion that the search for "spirit" could fall on the interpretation side of the divide.  It might be that they are better off sticking to their written position, which stipulates that the good-faith method applies only when “original meaning interpretation alone is not enough to resolve a controversy.”  It would thus be only in these cases of pure "construction" that fidelity to the constitutional "spirit" should arise as a constraint.  In that case, however, the question remains, in what way is "spirit" an originalist constraint? Is it only the "original spirit" that counts?  If so, is there some principled way that "spirit" is more than just a new word for "original intentions"? It could be that I'm just missing something--I often seem to be--but I find myself wondering whether the search for constitutional spirit might not rightly include arguments made in other interpretive modalities, including contemporary textualism, structure, doctrine, or even ethos.

 

 

Posted by Ian Bartrum on February 21, 2017 at 10:59 PM | Permalink

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