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02/11/2017

Randy Barnett & Evan Bernick: The Judicial Duty of Good-Faith Constitutional Construction
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) and Evan Bernick (Institute for Justice) have posted The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction on SSRN.  Here is the 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 judge-constraining virtues of originalism and exposes the citizenry to arbitrary judicial power. In this Article, we respond to this challenge with a theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” Our theory draws upon a familiar concept in contract law that is used to handle the problem of contractual discretion: the duty of good-faith performance.

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 officials and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given 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” (consisting in its original public meaning) and its “spirit” (consisting in the original function or purpose of its particular provisions.)

Therefore, when original meaning interpretation alone is not enough to resolve a controversy, the judicial duty of good-faith construction consists in (a) accurately identifying the spirit 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 of a court exploiting the discretionary process of implementing the Constitution by evading either its original letter or spirit (or both) to recapture an opportunity forgone by adopting the written Constitution as amended.

This is one of the papers that will be presented at the originalism works-in-progress conference in San Diego next weekend.  More from Randy Barnett at Volokh Conspiracy here.