In this third post on Original Methods Originalism, I want to conclude by explaining how original methods has the potential for signficantly limiting the discretion that judges exercise under an originalist approach.
One of the key issues in recent originalist theory involves the distinction between interpretation and construction. For my purposes, it is not the distinction between interpretation and construction, but the distinction between interpretation and the construction zone that is important. Interpretation involves the process for determining the actual meaning of a constitutional provision. After applying the interpretive process, it is possible that the original meaning may not decide the relevant matter at hand. In those cases, the original meaning will have run out. Those cases are described as being in the construction zone, which means that the original meaning cannot fully resolve them and therefore some extra constitutional law or policy is needed to fully resolve them. (To be clear, the original meaning will constrain the result reached by a judge, but it will still leave matters that are not resolved by the original meaning.)
In the academy today, there are three positions on the size of the construction zone. First, there is the position of Randy Barnett and Larry Solum, who appear to believe in a moderately sized construction zone. Under their view, many issues are resolved by the original meaning, but many questions are not. (Note that Barnett and Solum do not describe the size of their construction zone as moderate – that is my characterization.)
Second, there is the position of Jack Balkin, who believes in an extremely large construction zone (again my characterization). Balkin achieves this by adopting a very thin account of the meaning of constitutional provisions. This large construction zone allows Balkin to attempt to reconcile originalism and living constitutionalism.
Third, there is the position of Original Methods Originalism, which believes the construction zone is quite small, if it exists at all. Under this view, the construction zone might be empty or, if there are some issues within it, they are relatively small ones, involving the borders of vague provisions. The minimization of the construction zone is important, because it indicates that the original meaning of the Constitution is an important constraint and that other approaches, such as Balkin’s, are inconsistent with the Constitution’s original meaning.
But how could the construction zone be so small? The size of the construction zone turns on what words the Constitution uses and the interpretive rules that are properly applied to it. If the Constitution uses vague terms, then there will be a greater construction zone. If it uses more precise terms, the zone will be smaller. Similarly, if the Constitution assumes powerful interpretive rules for resolving uncertainty, the construction zone will be smaller.
Under original methods, the Constitution employs technical legal terms which have a much richer content than ordinary language. Consequently, there is less uncertainty. For example, the Sixth Amendment right of a criminal defendant to confront the witnesses against him will have an uncertain meaning if it is understood in ordinary language, but a more precise meaning if it is thought to adopt the common law understanding of that right.
Original methods also employs an interpretive rule that eliminates much discretion – the 51/49 rule that we believe was applied at the time of the Framing. Under this rule, an interpreter would decide close cases by selecting the interpretation that was better supported by the evidence, even if it was only by a little. Consequently, the close case could be decided by legal methods and therefore would not be in the construction zone.
The main type of question that might reside in the construction zone under original methods involves what we call totally vague provisions, such as the term “tall,” which has no precise cut off if used to describe a tall man. While there are some methods for resolving such terms, they may not always apply. But even then, the construction zone would be limited to resolving borderline cases such as deciding whether a man who is 5’11” is tall. It would not allow one to say a man of 5’8” is tall.
No one has yet persuasively shown that the original meaning of a constitutional term is totally vague and cannot be resolved by an interpretive rule. But even if some such cases exist, the construction zone would be relatively small.