56 Pages Posted: 9 Oct 2017 Last revised: 17 Nov 2018

Date Written: November 17, 2018

Abstract

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.

Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text).

Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences.