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12/21/2016

Evan Bernick on Constitutional Construction
Michael Ramsey

At the Federalist Society Blog, Evan Bernick (Institute for Justice): Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction.  From the introduction:

Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases?

In recent years, many (though not all) originalists have embraced the use of constitutional constructions—implementing doctrines that are designed to give legal effect to the Constitution in settings where interpretation of the text does not yield a single answer. Originalists who accept the distinction between interpretation (ascertaining the meaning of the text) and construction (giving that text legal effect) generally agree that judges cannot develop rules of construction that contradict the Constitution’s text—but no systematic effort has yet been made to establish the contours of permissible judicial activity within a “construction zone” that might be quite vast, depending upon how many constitutional questions cannot be resolved by interpreting the text.

And from further on:

As Professor Randy Barnett and I will argue in a forthcoming paper, judges who draw their power from “this Constitution” and publicly promise to adhere to it are legally bound to act consistently with not only the letter of the Constitution—its text—but its spirit—the function of its particular provisions, as ascertained by study of the publicly accessible context in which those provisions were framed and ratified. They are duty-bound to exercise the discretionary power delegated to them in good faith—to seek to give effect to the law of the land rather than seeking to impose their own extralegal beliefs or desires. Where the letter of the law does not yield a clear answer, they must have recourse to the spirit of the law in formulating rules of construction.

(Thanks to Mark Pulliam, who adds "Sounds like trouble.")

Also I don't think  the essay's ensuing example is illustrative.  Bernick points to the recent D.C. Circuit decision in PHH Corp. v. Consumer Financial Protection Bureau, which held that the Consumer Financial Protection Bureau (CFPB) violates Article II because its director is not removable at will by the President:

Judge Kavanaugh recognized that Humphreys Executor [finding a multi-member independent agency to be constitutional] foreclosed a conclusion that the structure of the CFPB violated Article II simply because the CFPB is an independent agency with consolidated powers and is not directly accountable to the President. He responded by formulating a construction, informed by the spirit of the clause he was giving effect to: Independent agencies may not be headed by a single person.

I would not call this a construction based on the Constitution's spirit; I would call it an application of the original meaning plus a very narrow (but arguably justified) reading of Humphrey's Executor.

RELATED:  At Liberty Law Blog, Greg Weiner: Crouching Congress, Hidden Judges (commenting on Randy Barnett on Mark Tushnet, noted here).  Among other highlights: 

Yet the judicial Minotaur does not differ from other variants of the all-consuming creature. Judicial power, like other kinds of power, is liable to abuse. Like all kinds, judicial power, having been forged for one hand to brandish, will ultimately be wielded by another. Like all power, judicial power, overly centralized or imposed, saps initiative and induces lassitude.