Georgetown University Law Center
Scholarship @ GEORGETOWN LAW
2017
The Letter and the Spirit: the Judicial Duty of
Good-Faith Constitutional Construction
Randy E. Barnett
Georgetown University Law Center, [email protected]
Evan Bernick
Institute for Justice, [email protected]
This paper can be downloaded free of charge from:
http://scholarship.law.georgetown.edu/facpub/1946
https://ssrn.com/abstract=2913223
This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author.
Follow this and additional works at: http://scholarship.law.georgetown.edu/facpub
Part of the Constitutional Law Commons
THE LETTER AND THE SPIRIT:
THE JUDICIAL DUTY OF GOOD-FAITH CONSTITUTIONAL
CONSTRUCTION
RANDY E. BARNETT* & EVAN BERNICK**
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 judgeconstraining 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.
INTRODUCTION
The concept of constitutional construction is of central importance to
originalist theory. It is also significantly underdeveloped. Originalists who
distinguish the activity of ascertaining the communicative content or linguistic
*
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director,
Georgetown Center for the Constitution
**
Assistant Director, Center for Judicial Engagement, Institute for Justice (until May 2017);
Visiting Lecturer, Georgetown University Law Center; and Fellow, Georgetown Center for the
Constitution (after May 2017).
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
meaning of the Constitution’s text (that is, constitutional interpretation) from the
activity of giving legal effect to that meaning (that is, constitutional construction)
have long contended that constitutional construction is an ineliminable feature of
constitutional adjudication.1 They have further argued that judges will very often
find themselves confronted with constitutional text that does not yield a single
determinate answer in a particular case. In such circumstances, resolving the case
will entail the application of a rule that is not part of the Constitution’s
communicative content—in a word, a rule that has been constructed. But how
are such rules to be constructed?
For those who believe that the interpretation-construction distinction
recognizes an unavoidable fact of constitutional adjudication, this is a big
problem. It is no exaggeration to say that the practice of constitutional law
consists largely of the development and application of what Richard Fallon has
helpfully termed “implementing doctrine” that cannot be derived from the
Constitution’s text.2 Yet exercising judicial power where the Constitution’s text
does not provide a single determinate answer looks suspiciously like an act of
will rather than “merely judgment”—a legislative rather than a judicial act.3 For
this reason, some originalists have been moved to deny that constitutional
construction is legitimate.4
In this article, we redress this grievance. We will articulate a theory of
constitutional construction and set forth guidelines for judicial activity within the
construction zone—guidelines that can equip judges to discharge their
constitutional duty to give effect to the “supreme law of the land.”5 We will do
so by drawing upon a concept that is familiar in contract law: the concept of
good-faith performance.
1
For a sampling of literature endorsing the interpretation-construction distinction, see, e.g.,
KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL
MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999); Lawrence B. Solum,
Semantic Originalism (Ill. Pub. Law Research Paper No. 07‐ 24, 2008), available at
http://ssrn.com/abstract=1120244; JACK BALKIN, LIVING ORIGINALISM (2011); Randy E.
Barnett, The Interpretation-Construction Distinction, 34 Harv. J.L. & Pub. Pol’y (2011);
Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. (2013).
2
See Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119
Harv. L. Rev. 1275 (1996).
3
See THE FEDERALIST No. 78 at 402 (Alexander Hamilton) (Liberty Fund, 2001).
4
See, e.g., Gary Lawson, Dead Document Walking, 92 B. U. L. Rev. (2012) (declaring the
Constitution a “no-construction zone”); ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 15 (2012) [hereinafter
READING LAW] (averring that the distinction between interpretation and construction stems
from a “false linguistic association” and “has never reflected the courts’ actual usage”); JOHN
O. MCGINNIS AND MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD
CONSTITUTION 139-154 (2013) (critiquing construction on both positive and normative
grounds); Richard Kay, Constitutional Construction and the (In)Complete Constitution, available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2778744 (2016) (disputing construction’s
historical pedigree and expressing concerns that construction “leaves a wide discretion to
officials and especially to judges employing it.”).
5
U.S. CONST. art. VI, cl. 2.
2
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
While we do not believe that the Constitution is a contract, we do believe
that people who voluntarily assume public office and take an express oath to
“support this Constitution” in compliance with Article VI enter into a particular
kind of relationship with private citizens in which they take on certain legal
obligations.6 Public officials, including Article III judges, enter into a fiduciary
relationship with private citizens—a relationship characterized by a discretionary
power in the hands of officials and a corresponding vulnerability in the citizenry.
Upon taking their oath, public officials are bound in conscience and in law to
follow the instructions given them in “this Constitution” in good faith. For
judges, that entails nothing more or less than giving effect to the Constitution in
cases properly before them.
Our analysis provides as follows:
•
•
•
•
In Part I, we briefly define the interpretation-construction distinction, trace its
origins, explain its importance to modern originalist theory, and note
concerns that have been raised about the discretion that constitutional
construction seems to extend to judges.
In Part II, we explain how the Constitution sets up a fiduciary government.
We contend that judges are properly understood to be fiduciaries and we
focus on one fiduciary duty that is particularly relevant to constitutional
adjudication: the duty to follow instructions. We argue that the voluntary
assumption of office accompanied by the express oath to “support this
Constitution” that Article VI requires of all government officials creates that
fiduciary relationship. We further argue that the oath imposes a moral and
legal duty upon judges in particular to ascertain and give effect to the
Constitution’s original public meaning.
In Part III, we explore the contractual duty of good-faith performance and
trace its implications for constitutional construction, drawing upon Steven
Burton’s seminal “foregone opportunities” theory of good-faith performance
in order to do so.7 We argue that judges are duty-bound to give effect to the
Constitution’s letter (consisting in its linguistic meaning) and its spirit
(consisting in the function of its particular provisions, as ascertained by the
study of their wording and the publicly available context at the time of their
enactment.) Accordingly, judges must forgo the opportunity to act on the
basis of will—on the basis of beliefs or desires that are not grounded in the
law, whether those extra-legal beliefs or desires are held by legislative or
executive branch officials or by the judges themselves.
In Part IV, we set forth guidelines for good-faith constitutional construction.
We submit that it is the spirit of the law that should guide judges within the
construction zone. In the construction zone, judges should identify the spirit
of constitutional provisions and formulate and apply rules of construction that
6
U.S. CONST. art. VI, cl. 3 (emphasis added).
See Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good
Faith, 94 HARV. L. REV. 369 (1980); Steven J. Burton, More on Good Faith Performance of a
Contract: A Reply to Professor Summers, 69 Iowa L. Rev. 497 (1984).
7
3
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
•
•
•
are not only consistent with that spirit but calculated to implement that spirit
in the case at hand and in similar future cases. Conversely, bad-faith
construction consists of a judge using the process of implementation to evade
the spirit of the Constitution.
In Part V, we evaluate several constitutional constructions: the modern
rational-basis test; the Court’s determination that the Fourth Amendment does
not limit Congress’s power to authorize warrantless searches and seizures in
the context of “closely regulated industries”; and the rule of strict scrutiny for
content-based restrictions on speech. We also summarize and critique John
McGinnis’ argument that Article III’s authorization of “[t]he judicial power”
incorporates a “duty of clarity”—a duty to apply interpretive methods that the
Constitution’s enactors would have considered applicable to it to clarify the
Constitution’s meaning and only invalidate challenged government actions if
those actions clearly violate the Constitution’s meaning.8 We then derive and
defend a good-faith construction of “[t]he judicial power” that can be applied
in all constitutional cases in which the government seeks to deprive people of
their life, liberty, or property or treat similarly situated people differently.
In Part VI, we consider the objections that good-faith construction is not
originalist, not helpful, too philosophical, and that seeking the spirit of the
Constitution will lead judges astray. In so doing, we consider whether goodfaith constitutionalism resembles the most defensible and appealing version
of the “old originalism” based on the intentions of the framers. And we
contend that, construed as an “originalist” theory, good-faith construction
compares favorably with the “original methods originalism” championed by
McGinnis and Michael Rappaport.9
A conclusion follows.
I.
THE INTERPRETATION-CONSTRUCTION
DISTINCTION: DEFINITION, ORIGINS, AND CRITICISM
Although the interpretation-construction distinction has only recently
become prominent within originalism, it is well-established in our jurisprudence
and has long been the object of legal scholarship. What follows is a short
summary of the distinction and its origins, as well as some concerns that have
been raised about its use within originalism.
A. Defining the Distinction
The Constitution of the United States “ordain[s] and establish[es]” a
particular government and conveys information about how that government is to
8
See John O. McGinnis, The Duty of Clarity, 84 The George Washington Law Review 843
(2016).
9
See John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory
of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751 (2009).
4
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
operate.10 Its words refer to concepts that are distinguishable from the subjective
understandings of those concepts held by any particular person or group of
people, much like the words you are reading right now.11 You, the reader, cannot
read our minds, but as members of our linguistic community, you can generally
understand the complex string of symbols that we are using to communicate our
ideas. If we use a term with which you are unfamiliar or use a familiar term in a
way that strikes you as unusual, you can consult a contemporary dictionary (if
necessary, a legal dictionary), other articles and books that we have written, or
other articles or books that treat of similar subject matter—some of which you
will find in the footnotes. There is a discoverable “there, there,” the meaning of
which can be ascertained.
The same is true of the Constitution. It was drafted in accordance with
eighteenth-century legal conventions and is composed of many words that are
associated with eighteenth-century law and governmental practice. Only through
engaging in disciplined study of contemporaneous word usage, grammar, and
syntax, as well as the relevant historical context, or by seeking the aid of
someone who has engaged in such study, can contemporary readers identify the
content that was communicated by its text at the time of its enactment.
The distinction between constitutional interpretation and constitutional
construction is nothing more or less than the distinction between ascertaining the
communicative content of the Constitution’s language as described in the
previous paragraph and giving legal effect to that content in a particular setting—
most relevant to our purposes, in a constitutional case adjudicated by an Article
III court. We can begin to appreciate this distinction by contemplating written
constitutions that are not given legal effect anywhere on the planet.
The Constitution of the Confederate States of America, for instance, is
designed to convey information about how a particular government should be
organized and operated. It is full of words, deliberately arranged in a particular
way, and through studying patterns of word usage, identifying features that it has
in common with other, similar documents, and generally immersing ourselves in
the relevant, publicly available context of constitutional communication, we can
begin to ascertain its communicative content. But government officials do not
assert power over private individuals on the basis of that communicative content,
and private individuals do not order their affairs in reliance upon it.
Why does the interpretation-construction distinction matter in cases where
the linguistic meaning of the Constitution can be directly applied and yield a
determinate result—for example, the Senate is to seat two and only two senators
per state?12 In such “easy” cases, the interpretation-construction distinction calls
10
U.S. CONST. pmbl.
See Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment?
Lysander Spooner’s Theory of Interpretation, 28 Pacific L.J. 977, 992 (1997) (explaining that
“language comes to have an objective meaning within a particular community that can be
discerned independently of individual opinions and usages” and that “were language not to have
some such meaning, it is not clear how it could serve as a general medium of communication.”).
12
U.S. CONST. art I, §III, cl. 1.
11
5
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
our attention to the fact that the bare existence of a text that communicates rules
that translate easily to determinate results cannot establish the moral legitimacy
of those rules or those results.
Governments are inescapably normative institutions. They claim the power
to command people to do things they would rather not do, and—more than
that—claim that it would be wrong to disobey those commands. That is to say,
governments claim not mere power—as might an ordinary criminal—but moral
authority.13 In order to determine whether the government established by the
Constitution can legitimately claim moral authority, we must first determine
what the nature of that government is, and we cannot do that without ascertaining
the communicative content of the Constitution’s text.
But the Constitution means what it means, regardless of whether it is (as
Frederick Douglass praised it) a “glorious liberty document”14 or (as William
Lloyd Garrison condemned it) a “covenant with hell.”15 Distinguishing the
question of what the communicative content of the Constitution is from the
question of whether it establishes a government that can legitimately claim moral
authority positions us to pursue two very different kinds of inquiry—an
empirical inquiry into the meaning of a text and a moral inquiry into whether that
meaning ought to bind our conduct— and the interpretation-construction
distinction acknowledges the difference between those kinds of inquiry.16
Where constitutional construction is most noticeable—and controversial—is
not in cases where legal effect follows in a straightforward way from the
Constitution linguistic meaning: for example, each state gets two Senators
because the Constitution says so and because the Constitution has authority.
Constitutional construction is most visible in cases that are underdetermined by
13
Thus, the advocate of any particular government must be able to answer the challenge
presented by Augustine of Hippo’s apocryphal but illuminating tale of a pirate who had the
misfortune of encountering Alexander the Great. That is, he must be able to differentiate that
government from a gang of pirates:
The king asked the fellow, ‘What is your idea, in infesting the sea?” And the pirate
answered with uninhibited insolence, ‘The same as yours, in infesting the earth! But
because I do it with a tiny craft, I’m called a pirate: because you have a mighty navy,
you’re called an emperor.
AUGUSTINE, THE CITY OF GOD 139 (Henry Bettenson trans., Penguin 1971). As Tara Smith
has put it, “[g]iven that a government is the institution that is uniquely entitled to impose rules of
social conduct by force, the question of its moral license cannot be avoided.” See TARA SMITH,
JUDICIAL REVIEW IN AN OBJECTIVE LEGAL SYSTEM 235 (2015).
14
Frederick Douglass, What to the Slave is the Fourth of July?, Speech at a meeting sponsored
by the Rochester Ladies? Anti-Slavery Society, Rochester Hall, Rochester, N.Y. (July 5, 1852),
in JAMES MONROE GREGORY, FREDERICK DOUGLASS THE ORATOR 103-06 (New
York, 1907).
15
JOHN BARTLETT, BARTLETT’S FAMILIAR QUOTATIONS 437 (J. Kaplan ed., 16th ed.
1992).
16
See Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave
Maria L. Rev. 1, 3 n. 8 (2007) (“It is one thing to establish the meaning of the Constitution. It is
quite another thing to say that the meaning of the Constitution should, as a normative matter,
guide conduct. All manner of mischief comes from confusing the two distinct enterprises.”). This
is not to say, of course, that the Constitution is not informed by particular moral commitments.
6
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
the Constitution’s language—where the text does not yield a single rule of law
that can be applied and resolve the case.
Underdeterminacy—not to be confused with indeterminacy17—can result
where the text is vague or ambiguous, or contradictory, as applied to a particular
set of facts, even after that text has been enriched with reference to the publicly
available context.18 Text is vague if there are borderline cases that are not clearly
encompassed by, nor outside the scope of, a concept indicated by a word. 19 Text
is ambiguous if it can have two or more distinct meanings.20 Finally, two textual
provisions are contradictory if one cannot simultaneously give effect to both of
them.21
In each of these situations, judges must deploy rules that are not part of the
communicative content of the text itself in order to reach a decision. When the
communicative content of the Constitution’s text does not point towards a single
determinate answer, judges must enter the construction zone.
B. The Origins of the Distinction
Understood as the activity of giving legal effect to constitutional text,
constitutional construction is not a new development. American judges have
been engaging in such construction since the adoption of written constitutions on
our shores. We can find examples of judges entering the construction zone and
applying rules of construction to resolve constitutional and statutory questions
long before and shortly after the Constitution was ratified.
For example, Article I, Section 8 concludes with a clause which states that
Congress shall have the power “[t]o make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the Government of the United States, or in any
department or officer thereof.”22 How is this injunction to be applied to any
particular congressional enactment like, say, the establishment of a national
bank? More precisely, how does one apply the terms “necessary and proper”?
17
See Lawrence Solum, Legal Theory Lexicon 036: Indeterminacy,
available at
http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_2.html (explaining that
“[t]he law is underdeterminate with respect to a given case if and only if the set of legally
acceptable outcomes is a nonidentical subset of the set of all possible results” whereas it is
indeterminate “if the set of legally acceptable outcomes is identical with the set of all possible
results.”).
18
See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev.
453, 519 (2013) (“The basic idea of contextual enrichment is that given the publicly available
context of constitutional communication, the text conveys communicative content that is
unstated, because, for example, the meaningfulness or sensibility of the text assumes the
additional content.”).
19
Id. at 470.
20
Id. at 469.
21
Id. at 470.
22
U.S. CONST. art. I, §8, cl. 18.
7
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
The first step in the process is to define the public meaning of the terms at
the time of their enactment. So a judge might conclude that if “reference be had
to its use in the common affairs of the world or in approved authors,” one finds
that the term “necessary” frequently imports no more than that one thing is
convenient, or useful, or essential to another.23 To employ the means necessary
to an end is generally understood as employing any means calculated to produce
the end, and not as being confined to those single means without which the end
would be entirely unattainable.
To explain how the communicative content of “necessary” (along with that
of “proper” and the rest of the clause) applies to a national bank, a judge might
then adopt the following rule of construction: “Let the end be legitimate, let it be
within the scope of the Constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited but consistent with the
letter and the spirit of the Constitution, are constitutional.”24
Of course, for good or ill, this was the rule of construction adopted by the
Court in McCulloch v. Maryland to implement the text of the Necessary and
Proper Clause. And this rule of construction has been invoked by courts
countless times ever since when evaluating whether a particular law is a
“necessary and proper”—and therefore constitutional—exercise of the powers of
Congress.25
Practice is one thing; conceptualizing that practice is another. The
conceptualization of the interpretation-construction distinction is more recent.
The nineteenth-century scholar Francis Lieber seems to have been the first to
formally distinguish between interpretation and construction. In his 1839 treatise,
Legal and Political Hermeneutics, Lieber defined “construction” as “the drawing
of conclusions respecting subjects, that lie beyond the direct expression of the
text, from elements known from and given in the text—conclusions which are in
the spirit, though not within the letter of the text.”26 For Lieber, construction was
a means by which to avoid “sacrificing the spirit of a text or the object, to the
letter of the text” and thus defeating “the best and wisest intentions” of the
makers of the written instrument.27
Shortly thereafter, abolitionist lawyers and activists like Lysander Spooner,
William Goodell, and Joel Tiffany distinguished between the “letter” and the
“spirit” of the Constitution and applied rules of construction in the service of
arguments that the Constitution not only did not expressly affirm the right to
23
McCulloch v. Maryland, 17 U.S. 316, 413 (1819).
Id. at 421.
25
See, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 US 112
(1970); US v. Comstock, 130 S. Ct. 1949 (2010); Nat. Fedn. of Indep. Business v. Sebelius, 132
S. Ct. 2566 (2012); Shelby County, Ala. v. Holder, 133 S. Ct. 2612 (2013).
26
FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS, OR PRINCIPLES OF
INTERPRETATION AND CONSTRUCTION IN LAW AND POLITICS 44 (William G.
Hammond ed., 3d ed., St. Louis, F.H. Thomas & Co. 1880) (1837).
27
Id. at 45.
24
8
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
hold property in slaves but actually prohibited slavery.28 Goodell, for example,
distinguished between two activities: “strict construction” and the “spirit of the
Constitution,” which loosely correspond to what we are calling “interpretation”
and “construction.” He defined “strict construction” as insisting that “the words
of the instrument, the literal words, according to their commonly received and
authorized import, and nothing but the words shall be allowed to tell us the
meaning of the Constitution.”29 He then explained how such an approach “rules
the Historian and the News Journalist out of the witness-box, and installs the
Grammarian and the Lexicographer in their stead.”30 To this strict construction
approach he contrasted the “spirit of the constitution” in which the “prevailing
spirit, the general scope, the leading design, the paramount object, the obvious
purpose of the instrument, constitute the first, the chief point of attention.”31
For Goodell, the need to examine the “spirit of the Constitution,” arises “in
case of discrepancies, and contradictions, to which all written instruments of
fallible men are subject.”32And, he observed, “the very notion of ‘construction’
supposes that something needs to be explained and determined, that had seemed
anomalous, obscure, or doubtful.”33 Further, this need arises in the course of
applying text to concrete cases. “To construe the Constitution,” he wrote, “is to
fix, definitely, upon its true meaning, or some particular portion or feature of it,
and decide what application or bearing it has, upon some practical problem,
particularly under consideration, at the time.”34
The distinction between interpretation and construction was subsequently
refined by contracts scholars, including Arthur Corbin, Edwin Patterson, and
Allen Farnsworth.35 Corbin, unlike Lieber, held that all judicial determinations
beyond ascertaining the meaning of expressions and determining that a contract
existed were not part of “interpretation” but were rather part of “construction,”
thereby categorically separating the linguistic meaning of a contract and its legal
28
See LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY (1845),
reprinted in 4 THE COLLECTED WORKS OF LYSANDER SPOONER 12 (Charles Shively
Ed., 1971) [hereinafter WORKS]; JOEL TIFFANY, A TREATISE ON THE
UNCONSTITUTIONALITY OF AMERICAN SLAVERY TOGETHER WITH THE POWERS
AND DUTIES OF THE FEDERAL GOVERNMENT IN RELATION TO THAT SUBJECT
(1849)[hereinafter TIFFANY]; WILLIAM GOODELL, AMERICAN CONSTITUTIONAL
LAW AND ITS BEARING UPON AMERICAN SLAVERY (1845) [hereinafter GOODELL].
29
GOODELL, supra note 28, at 21.
30
Id. at 21-22.
31
Id. at 81-82.
32
Id. at 82.
33
Id.
34
Id. at 114.
35
See 3 ARTHUR L. CORBIN, CORBIN ON CONTRACTS §§ 532–35 (1960 & Supp. 1980);
Edwin W. Patterson, The Interpretation and Construction of Contracts, 64 COLUM. L. REV.
833 (1964); E. Allan Farnsworth, “Meaning” in the Law of Contracts, 76 YALE L.J. 939 (1967).
9
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
effect.36 Thus refined, the distinction between interpretation and construction
eventually made its way into the Restatement of Contracts and continues to play
a role in contracts scholarship and to guide adjudication.37
Much more recently, the interpretation-construction distinction has become
a fixture in constitutional theory. It is among the defining features of what has
been termed “the New Originalism,” a phrase used to describe the work of
several theorists, including Keith Whittington, Randy Barnett, Jack Balkin, and
Lawrence Solum.38 Whittington introduced the distinction into constitutional
theory in two influential books, Constitutional Interpretation and Constitutional
Construction;39 Barnett deployed the distinction in his influential essay, An
Originalism for Nonoriginalists and elaborated upon it in his book, Restoring the
Lost Constitution: The Presumption of Liberty;40 Balkin drew upon Barnett and
Whittington’s ideas in his influential essays, Abortion and Original Meaning and
Original Meaning and Constitutional Redemption, and adopted the distinction in
his book, Living Originalism;41 and Solum elaborated upon and defended the
distinction as fundamental and indispensable to constitutional theory in The
Interpretation-Construction Distinction and Originalism and Constitutional
Construction.42
C. Concerns about Construction
While the introduction of the interpretation-construction distinction into
constitutional theory has been highly influential, it has not been without
controversy. The legitimacy and usefulness of the distinction has been
challenged by both originalists43 and nonoriginalists,44 and even certain of the
36
For a discussion of the differences between Lieber and Corbin’s approaches, see Lawrence A.
Cunningham, Hermeneutics and Contract Default Rules: An Essay on Lieber and Corbin, 16
Cardozo L. Rev. 2225 (1995).
37
See Keith A. Rowley, Contract Construction and Interpretation: From the “Four Corners” to
Parol Evidence (and Everything in Between), 69 MISS. L.J. 73 (1999); Solum, supra note 17, at
485-7 (citing cases deploying the distinction).
38
The phrase, “the New Originalism,” seems to have been popularized by Whittington. See Keith
Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004).
39
See KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED
POWERS AND CONSTITUTIONAL MEANING (1999); KEITH E. WHITTINGTON,
CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT,
AND JUDICIAL REVIEW (1999).
40
Randy E. Barnett, An Originalism for Nonoriginalists, 5 LOY. L. REV. 611 (1999); RANDY
E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF
LIBERTY (2005) [hereinafter RESTORING THE LOST CONSTITUTION].
41
Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291(2007); Jack
M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427
(2007); JACK M. BALKIN, LIVING ORIGINALISM (2011).
42
Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95
(2010); Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev.
453, 519 (2013).
43
See works cited, supra note 4.
10
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
proponents of the interpretation-construction distinction have acknowledged the
need to develop an approach for guiding judicial activity within the construction
zone.45
Judges are fallible and busy, and may fail to realize that the meaning of the
text is thick enough to provide determinate answers to constitutional questions in
cases where such answers are in fact discoverable. Further, depending upon how
much of the Constitution’s text is actually vague or irreducibly ambiguous—that
is, ambiguous even after diligent contextual enrichment—the construction zone
might be wide indeed, even if judges were infallible and had infinite time.
If, as originalism critic Thomas Colby has put it, the original meaning of the
Constitution is “sufficiently open-ended as to be incapable of resolving most
concrete cases” and if there will be “multiple rules of decision that are each
consistent with the original meaning of the vague or ambiguous constitutional
commands,” judges embarking upon a construction project might seem to be
adrift in an ocean of discretion.46 “Living originalist” Jack Balkin, for instance—
who holds a particularly thin conception of constitutional meaning—has
identified eleven kinds of appropriate arguments—arguments from text,
structure, purpose, consequences, precedent, convention, custom, natural law,
national ethos, political tradition and honored authority—that might be used to
support particular constructions.47
Loosely-bounded judicial discretion is deeply troubling. Judges have the
power to determine whether neighborhoods are bulldozed, speech is silenced,
livelihoods are destroyed, and people are jailed or executed—or instead set free.
The more options judges have to “choose” from when determining whether a
particular assertion of government power is lawful, the more that judges’ own
power seems to be arbitrary—unmoored from any predetermined, publicly
accessible conclusions of reason in the law, and resting only upon judges’ beliefs
or desires.48 Owing to the gravity of judicial decisions, the mere appearance of
44
See, e.g., Thomas B. Colby, The Sacrifice of the New Originalism, 99 GEO. L.J. 713 (2011)
(remarking upon the “profound flexibility” of an originalism that accepts the interpretationconstruction distinction); Peter J. Smith, How Different Are Originalism and Non-Originalism,
62 Hastings L.J. 707 (2011) (doubting that originalism that accepts the interpretationconstruction distinction is meaningfully different from nonoriginalism); Martin H. Redish &
Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic
Dilemma: Proposing a “Controlled Activism” Alternative, 64 FLA. L. REV. 1485, 1507 (2012)
(“Orwellian” to describe any interpretive approach that embraces the interpretation-construction
distinction as “‘originalist’ in any meaningful sense of that term.”).
45
Barnett, supra note 1 at 7 (pointing to the need for a “theory for how to construe a constitution
when its meaning runs out.”).
46
Colby, supra note 44, at 732.
47
Jack M. Balkin, The New Originalism and the Uses of History, 82 FORD. L. REV. 641, 659-60
(2013).
48
See BLACK’S LAW DICTIONARY 104 (9th ed. 2008) (defining “arbitrary” as “[w]ithout
fair, solid, and substantial cause; that is without cause based upon the law.”).
11
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
“arbitrary discretion in the courts” can cast a pall of illegitimacy on the
institution of which judges are a part.49
Indeed, one of the principal appeals of originalism is its promise of
maintaining the rule of law.50 Originalism promises fixed limits on government
power—not just any fixed limits, but those set forth in our written law. If most
constitutional adjudication is only loosely constrained by the Constitution’s
language and what takes place within those constraints is guided only by a grabbag of nebulous principles, it is questionable whether an originalism that
acknowledges constitutional construction as legitimate can deliver on its promise
of maintaining the rule of law.
Finally, it is not very useful to tell judges that they are free (within the
boundaries set by linguistic meaning that some proponents of the interpretationconstruction distinction believe to be quite thin) to articulate whatever rules of
decision they deem to be consistent with their preferred normative theories.
Judges do not have the leisure to consider how they might make the Constitution
“the best it can be,” so long as they stay within the bounds of a capacious
framework.51
For these reasons, judges need a means of focusing their attention on the
right kinds of things from the outset. More fundamentally, a people whose
retained rights are protected by a written constitution that sets forth the laws that
govern those who govern them need a way to constrain judges to adhere to “the
law that governs them,” even when the text of the constitution does not, standing
alone, dictate specific outcomes of cases or controversies.
For these reasons, if originalists who insist that the interpretationconstruction distinction is unavoidable are to address concerns that recognizing
this distinction exposes the citizenry to arbitrary judicial power, as well as to
provide practical guidance to judges, they must develop a methodology for
disciplining constitutional construction. By sketching the contours of judges’
constitutional duties, we can find the resources to equip judges to engage in the
kind of constitutional construction that enables them to discharge those duties.
49
See THE FEDERALIST No. 78 (Hamilton), supra note 3, at 407.
See Lawrence B. Solum, Semantic Originalism at *129 (Ill. Pub. Law Research Paper No. 07‐
24, 2008), available at http://ssrn.com/abstract=1120244 (noting that a “familiar justification for
originalism is based on the great value of the rule of law and its associated values, predictability,
certainty, and stability of legal rules.”). For a detailed historical exploration of the concept of the
rule of law, see BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS
THEORY (2004); for a lucid theoretical exploration of the concept, see Tara Smith, Neutrality
Isn’t Neutral: On the Value-Neutrality of the Rule of Law, 4 WASH. U. JUR. REV. 49 (2011).
51
See RONALD DWORKIN, LAW’S EMPIRE 248 (1986).
50
12
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
II. FIDUCIARY GOVERNMENT AND JUDICIAL DUTY
To borrow James Iredell’s memorable description at the North Carolina
ratifying convention, the American Constitution is “a great power of attorney.”52
It bears the marks of a particular kind of legal document—one that creates a
particular kind of relationship between “We the People” and their agents in
government, who wield delegated, tightly circumscribed power on their behalf.
Judges are no exception to a general principle that is central to understanding the
Constitution’s structure and content—the principle of fiduciary government.
A. Constituting a Fiduciary Government
In order to understand the principle of fiduciary government, one must first
understand fiduciary relationships in private law. In private law, fiduciary
relationships are created when one person (the fiduciary) is entrusted with
control or management of the assets or legal interests of another (the beneficiary)
in order to promote the beneficiary’s interests.53 One side of this relationship is
characterized by discretionary power that is placed in the hands of the fiduciary;
the other side is characterized by the dependency and vulnerability of the
beneficiary.
By way of compensating for this imbalance and preventing abuses of power,
the law imposes a set of stringent default rules on fiduciaries to ensure that they
do not betray their beneficiaries’ trust.54 These duties include the duty to follow
the beneficiary’s instructions; the duty to take reasonable care and competently
pursue the beneficiary’s interests; the duty of loyalty and good faith, that is, the
honest pursuit of the beneficiary’s interests rather than the fiduciary’s own; if
there are a multiple beneficiaries, the duty of impartiality in considering and
balancing their interests; and the duty to account to the beneficiary.55
As Gary Lawson, Robert Natelson, and Guy Seidman have demonstrated
through their pioneering research, the Constitution was designed to establish a
government “whose conduct would mimic that of the private-law
fiduciary.”56Americans did not invent the concept of fiduciary government, but
52
THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION 148-49 (Jonathan Elliot ed., 2d ed. 1901) (statement of Att’y
Gen. Iredell) [hereinafter ELLIOT’S DEBATES].
53
See Paul B. Miller, A Theory of Fiduciary Liability, 56 MCGILL L.J. 235 (2011).
54
See generally LEONARD I. ROTMAN, FIDUCIARY LAW (2005); J.C. SHEPHERD, THE
LAW OF FIDUCIARIES (1981); L.S. Sealy, Fiduciary Relationships, 20 CAMBRIDGE L.J. 69
(1962); J.C. Shepherd, Towards a Unified Concept of Fiduciary Relationships, 97 L. Q. REV. 51
(1981); Ernest J. Weinrib, The Fiduciary Obligation, 25 U. TORONTO L.J. 1 (1975).
55
See Robert G. Natelson, Judicial Review of Special Interest Spending: The General Welfare
Clause and the Fiduciary Law of the Founders, 11 TEX. REV. L. & POL. 239, 255-62 (2007).
56
See, e.g., id; Robert G. Natelson, The Government as Fiduciary: A Practical Demonstration
from the Reign of Trajan, 35 U. RICH. L. REV. 191, 193 (2001); Robert G. Natelson, The
Constitution and the Public Trust, 52 BUFF. L. REV. 1077 (2004); GARY LAWSON ET AL.,
THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE 68–70 (2010); Gary Lawson
13
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
they understood the relationship between ‘government and governed’ in
fiduciary terms, influenced in this regard by their favorite political theorists.
John Locke, whose influence upon Founding-era political philosophy has
been widely noted, presented government officials as fiduciaries who wielded
powers delegated to them by the people “with this trust, that they shall be
governed by declared laws” and referred to legislative power as a “fiduciary
power to act for certain ends.”57 In their popular and highly influential series of
essays, “Cato’s Letters,” published in the early 1720s, John Trenchard and
Thomas Gordon described government as a “trust, which ought to be bounded
with many and strong restraints” and stated that “[e]very violation . . . where
such violation is considerable, ought to be met with proportionable
punishment.”58
Baron de Montesquieu’s The Spirit of the Laws, repeatedly cited by
Federalists and Anti-Federalists alike, states that citizens “entrusted” with public
employment ought “to live, to act, and to think” for the sake of their fellow
citizens alone.59 References to government officials as servants, agents,
guardians, and trustees abound in Founding-era literature and in public debates
over the Constitution—both the Federalist Papers and the Anti-Federalist
Papers are chock-full of references to the ideal of government as fiduciary.60
The Constitution’s structure, design, and content disclose its character as a
fiduciary instrument. Like other eighteenth-century fiduciary documents, it
begins with a preamble that states the purposes of the trust being established.61 It
then grants power to federal actors and institutions, as if to fiduciaries of “We the
People.”62 The Constitution refers to “public trust”63 and to public offices “of
et. al., The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. 415 (2014);
Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal
Government's Fiduciary Duty of Care (Boston Univ. School of Law, Public Law Research Paper
No. 16-29, 2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2822330
57
JOHN LOCKE, TWO TREATISES OF GOVERNMENT § 136 (Peter Haslett, ed. 1965)
[hereinafter TWO TREATISES].
58
JOHN TRENCHARD & THOMAS GORDON, CATO'S LETTERS 267 (Ronald Hamowy ed.,
1995).
59
CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF LAWS, in
MONTESQUIEU/ROUSSEAU 31 (Thomas Nugent trans., Encyclopedia Britannica ed. 1952).
60
See, e.g., THE FEDERALIST No. 14 (Madison), supra note 3, at 63 (in a republic, the people
“assemble and administer [their government] by their representatives and agents”); THE
FEDERALIST No. 46 (Madison), supra note 3, at 243 (“agents and trustees of the people”);
THE FEDERALIST No. 57 (Madison), supra note 3, at 295 (“public trust”); THE
FEDERALIST No. 59 (Hamilton), supra note 3, at 310 (“guardianship” and “trust”); THE
COMPLETE ANTI-FEDERALIST 289 (Herbert Storing, ed., 2008) (legislators “are our
representatives and agents”).
61
ROBERT G. NATELSON, THE ORIGINAL CONSTITUTION: WHAT IT ACTUALLY
SAID AND MEANT 20 (2010).
62
Lawson et. al, supra note 55, at 429.
63
U.S. CONST. art. VI, cl. 3.
14
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
trust”64; Congress is empowered to enact measures that are “necessary and
proper” for carrying delegated powers into execution, and to “lay and collect
taxes, duties, imposts, and excises” in order to “provide for the . . . “general
welfare”; and the President is required to “take care that the laws be faithfully
executed.”
All of this language sounds in eighteenth-century fiduciary law.65 Writes
Natelson, this language reveals a “purpose . . . to erect a government in which
public officials would be bound by fiduciary duties to honor the law, exercise
reasonable care, remain loyal to the public interest, exercise their power in a
reasonably impartial fashion, and account for violations of these duties.”66
B. Judges as Fiduciaries
Federal judges, no less than other government officials, draw their power
from the Constitution—specifically, from Article III. By the time of the
Founding, English public law routinely applied fiduciary norms to “executive”
actors, a category that included judges.67 That judges were publicly understood
to be fiduciaries can be discerned from Founding-era writings that presented
judges as representatives of the people, no less than legislators. Thus, Alexander
Hamilton in Federalist 78 argued that judges are obliged to prefer the “intention
of the people” (expressed in the Constitution) to the intention of their “agents” in
the legislature when those intentions conflicted.68
That is, judges were understood to have a fiduciary duty to ensure that the
people’s agents in the other branches adhered to their fiduciary duties. Shortly
after the Constitution was ratified, a number of judges were impeached for
violating fiduciary principles. For example, when Judge John Pickering was
impeached in 1803-4, he was charged with acting “contrary to his trust.”69
However the relationship between federal judges and private citizens may
have been understood during the Founding era, the fiduciary model accurately
captures that relationship. Judges are entrusted with immense power—to deprive
private citizens of their liberty, their property, even their lives. As we will
discuss below, judges receive their power through a formal process that entails,
among other things, a specific agreement to “support this Constitution.” Because
we are all vulnerable to judicial decisions that bring the government’s coercive
64
U.S. CONST. art. I, §3, cl. 7 (“Office of . . . Trust”); Id., art. I, § 9, cl. 8; Id., art. II, § 1, cl. 2
(“Office of Trust”).
65
See Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in THE
ORIGINS OF THE NECESSARY AND PROPER CLAUSE 52, 52-53 (2010); Robert G.
Natelson, The General Welfare Clause and the Public Trust: An Essay in Original
Understanding, 52 U. Kan. L. Rev. 1 (2003); Lawson & Seidman, supra note 56, at 7-13.
66
Robert G. Natelson, The Constitution and the Public Trust, 52 BUFF. L. REV. 1077, 1178
(2004).
67
Lawson et. al, supra note 55, at 434.
68
THE FEDERALIST No. 78 (Hamilton), supra note 3, at 404.
69
13 ANNALS OF CONG. 319–22 (1804).
15
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
power to bear upon us, federal judges are properly understood to be fiduciaries,
with corresponding duties.
It is thus unsurprising that fiduciary duties map on well to the judicial office.
In an illuminating article, Ethan Leib, David L. David, Michael Serota identify
and trace the implications of several fiduciary duties for the judicial office: the
duty of loyalty, the duty of care, and the duty of accounting.70 The fiduciary duty
of loyalty—the duty to use one’s powers exclusively to serve the interests of
one’s beneficiaries—translates into a judicial duty of unbiased adjudication,
which has served as “the cornerstone of the ethical commitment of judges, both
historically and in the contemporary ethical rules governing judges.”71 The duty
of care, applied to judges, requires them to “engage in reason-based decision
making, while giving reasons for their decisions.”72 Finally, the duty of
accounting requires judges to be “forthright in their opinion writing, explaining
honestly why they are deciding as they are.”73
In the context of constitutional interpretation and construction, the most
salient fiduciary duty is the duty to follow instructions. The Constitution is itself
an instruction manual for a form of government, and judges not only draw their
power from the Constitution but are required (like other federal officials) by
Article VI of the Constitution to take an oath to “support” that form of
government.74 It is “this Constitution” that must guide judges in their conduct in
office. Guiding their conduct by “this Constitution” entails following the
particular instructions given to them in the provisions of the Constitution that
authorize and delimit their power.
Though distinct from the mutual consent needed to form a contract—which
ordinarily does not create a fiduciary relationship between the parties—a
fiduciary relationship is a nonetheless a voluntary assumption of the duties that
correspond to the powers that are allotted to the fiduciary. Agency is a
consensual relationship; it is “the fiduciary relation which results from the
manifestation of consent by one person to another that the other shall act on his
behalf and subject to his control, and consent by the other so to act.”75 Although
private-law agency relationships require mutual assent, some fiduciary
relationships arise unilaterally. For example, a guardian voluntarily assumes a
fiduciary relationship with a ward.
Although we maintain that it is a fiction to claim that each and every person
subject to the jurisdiction of a government consents to that jurisdiction,76 each
70
Ethan J. Leib et al., A Fiduciary Theory of Judging, 101 CAL. L. REV. 699, 712 (2013)
Id. at 731.
72
Id. at 736.
73
Id. at at 730.
74
U.S. CONST. art. VI, cl. 3
75
RESTATEMENT (SECOND) OF AGENCY § 1 (1957). On the relationship of agency to contractual
relationships, see Randy E. Barnett, Squaring Undisclosed Agency Law with Contract Theory, 75
Cal. L. Rev. 1969 (1987).
76
See RESTORING THE LOST CONSTITUTION, supra note 40, at 10-31 (critiquing claims
for government authority based on “tacit consent”).
71
16
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
and every judge expressly consents to be bound by “this Constitution.” This is no
fiction. The consent of the judge who swears the required oath is as real and
pristine as the consent to any contract. And that oath has both moral and legal
implications for the duties of judges who hold their office on condition of their
taking such an oath.
Article III’s text is sparse but thick with meaning. As Philip Hamburger has
shown in his authoritative study of what we now call judicial review, Law and
Judicial Duty, the authorization of the “[t]he judicial power” incorporates a
concept of the judicial office that was sufficiently well-understood during the
Founding era as to be unnecessary to spell out in any great detail. 77 At its core,
the office of judging was an office of independent judgment in accordance with
what Sir Edward Coke described as “the artificial reason of the law”78—
judgment free from the distorting influence of will.79
Judges were to decide cases properly before them in conformance with the
law of the land—not the extralegal beliefs or desires of government officials, or
judges’ own extralegal beliefs or desires.80 Judges’ own convictions concerning
the law’s justice could not overcome their duty to give effect to the law where
the meaning of the law was clear, although in uncertain statutory cases, they
would adopt equitable interpretations informed by natural law principles, on
what Hamburger describes as the “charitable supposition that the injustice had
not been intended.”81
In the early American republic, the duty of independent judgment was a
duty with profoundly countermajoritarian implications. The principal threats to
liberty in eighteenth-century America came from state legislatures and popular
majorities that (as Hamburger explains) “repeatedly threatened the freedom of
various racial, religious, political, and propertied minorities.”82 While judges in
77
PHILIP HAMBURGER, LAW AND JUDICIAL DUTY (2006).
The phrase comes from Coke's famous reply to King James I’s assertion that since law was
founded upon reason, the king, being as rational as any judge, could ascertain the law as well as
the judges. This Coke denied:
[T]rue it was, that God had endowed his Majesty with excellent Science, and great
Endowments of Nature; but his Majesty was not learned in the Laws of his Realm of
England, and Causes which concern the Life, or Inheritance, or Goods, or Fortunes of
his Subjects, are not to be decided by natural Reason but by the artificial Reason and
Judgment of Law, which Law is an Act which requires long Study and Experience,
before that a Man can attain to the Cognizance of it . . .
E. COKE, REPORTS 63, 65 (pt. 12, 4th ed. 1738), reprinted in 77 Eng. Rep. 1342, 1343 (1907).
79
LAW AND JUDICIAL DUTY, supra note 77, at 148.
80
See id. at 148-159 (discussing need to resist influence of Crown officials seeking deference to
executive power—externally imposed will); id. at 173-178 (discussing need to resist influence of
own political inclinations—internal will).
81
Id. at 54-5 (explaining that “judges at least by the sixteenth century came to recognize that
they could pursue charitable suppositions about a statute’s intent only when its intent was
otherwise unclear.”).
82
Id. at 324. See also GORDON S. WOOD, THE CREATION OF THE AMERICAN
REPUBLIC 1776-1787 408 (2d ed. 1998) [hereinafter CREATION OF THE AMERICAN
REPUBLIC] (detailing how in the 1780s “Americans’ inveterate suspicion and jealousy of
78
17
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
England could take refuge in popular support when they resisted pressure from
executive officials to defer to royal will, American judges often found
themselves alone.83 Nonetheless, they did their duty and came to be regarded as
essential to the maintenance of the rule of law and the protection of individual
rights. Thus, the 1787 Constitution provides for a structurally independent
federal judiciary, staffed by judges who would serve during “good behaviour”
and enjoy undiminished salaries (by way of warding off threats to their
independent judgment),84 to (in Alexander Hamilton’s words) “guard the
Constitution and the rights of individuals.”85
The fact that the “supreme law of the land” that American judges are dutybound to interpret and apply was placed in writing is significant and bears
comment. The written character of the Constitution serves a number of functions,
some of which functions are also served by the statutes of frauds in every state in
the union that require agreements of a certain magnitude to be in writing to be
enforceable.
John Calamari and Joseph Perillo, drawing upon the work of renowned
contracts scholar Lon Fuller, have identified four functions of placing
agreements in writing: evidentiary, cautionary, channelling, and clarity. A
writing provides “reliable evidence that a given transaction took place”; it
ensures that “the promisor had ample opportunity to reflect and deliberate on the
wisdom of his act; it makes “the populace . . . aware that the use of a given
device will attain a desired result”; and, by encouraging parties “to work out
details not contained in an oral agreement,” it “educate[s] parties as to the full
extent of their obligations” and “provide[s] public notice of the transaction.”86
The writtenness of the Constitution also reflects the Anglo-American
experience, which had shown that limitations on government power that were not
“locked in” through a writing tended to be disregarded in practice, as well as
Americans’ own recognition that their society had become increasingly mobile,
diverse, and fragmented.87 Americans thus put their Constitution in writing and
sought to draft it with clarity to set fixed, publicly known limits on the power of
government officials, including judges. When Anti-Federalist opponents of the
political power, once concentrated almost exclusively on the Crown and its agents, was
transferred to the various state legislatures,” which had become “the institutions to be most
feared.”).
83
LAW AND JUDICIAL DUTY, supra note 77, at 324.
84
See U.S. CONST. art. III, §1.
85
THE FEDERALIST No. 78 (Hamilton), supra note 3, at 405. Hamburger cautions against
projecting such functional considerations into the minds of judges deciding cases. See LAW
AND JUDICIAL DUTY, supra note 76, at (“[J]udges ordinarily assumed that they served the
function of enforcing the constitution and protecting liberty by doing their duty—by deciding in
accord with the law of the land”). But “[it] was understood that in doing their duty, the judges
served broader constitutional functions.” Id.at 322.
86
JOHN CALAMARI AND JOSEPH PERILLO, CONTRACTS 296 (3d ed. 1987).
87
LAW AND JUDICIAL DUTY, supra note 77, at 501-2 (finding that, as a consequence of this
fragmentation, Americans “felt peculiarly dependent on express constitutions and judicial
enforcement.”).
18
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
proposed, unamended Constitution criticized the imprecision with which the
federal government’s power was limited, Federalists did not dispute the need for
precision—they argued that the Constitution was as clear as human language and
the nature of the enterprise permitted.88
By establishing a structurally-independent judiciary, staffed by judges with
a duty of independent judgment, Article III ensures that individuals who are
confronted with assertions of government power that they believe to be unlawful
need not resort to revolution in order to vindicate their rights—rights that, as
experience had shown, could be threatened by local legislatures no less than by a
distant monarch. To borrow Locke’s phrasing, Americans are guaranteed a
“known and indifferent judge” who will “determine all differences according to
the established law.”89 Article III is designed to provide individuals with access
to impartial adjudicators who will give measure government power against the
“supreme law of the land.”
To say, however, that judges are fiduciaries and are duty-bound to exercise
independent judgment and give effect to the Constitution is to give little
guidance concerning how they are to interpret the Constitution or what they are
to do in cases where they are unable to arrive at one determinate answer to a
particular legal question. Even as they strove for precision and emphasized that
the Constitution had been written as precisely as the enterprise admitted, the
Constitution’s defenders acknowledged an inherent imprecision in language and
the impossibility of providing for every contingency.90
Originalists have a ready answer to the first question—judges are to
ascertain the communicative content of the Constitution’s text at the time of its
enactment. They have not yet developed a framework for addressing the second
question. We believe that the answer lies in contract law, which the interpretive
approach that is now predominant within originalism—original public
meaning—so closely resembles.91
III. THE JUDICIAL DUTY OF GOOD-FAITH PERFORMANCE
The fiduciary relationship between federal judges and the rest of us arises
through a formal promise. As Judge Frank Easterbook has described it:
88
See THE FEDERALIST No. 37 (Madison), supra note 3, at 183 (explaining that “no language
is so copious as to supply words and phrases for every complex idea, or so correct as not to
include many equivocally denoting different ideas but stressing that “[t]he real wonder is that so
many difficulties should have been surmounted [in drafting the Constitution], and surmounted
with a unanimity almost as unprecedented as it must have been unexpected.”).
89
TWO TREATISES, §125. See Philip A. Hamburger, Revolution and Judicial Review: Chief
Justice Holt’s Opinion in City of London v. Wood, 94 Colum. L. Rev. 2091, 2153 (1994)
(“American judicial review—based on written constitutions, the separation of powers, and the
independence of the judiciary—offered a partial, temporal solution to the problem that, as
Americans knew all too well, might otherwise require an appeal to heaven.”).
90
See THE FEDERALIST No. 37 (Madison), supra note 3, at 183.
91
See ORIGINALISM AND THE GOOD CONSTITUTION, supra note 4, at 123 (noting that
public meaning originalism is “the predominant originalist theory.”).
19
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Like other judges, I took an oath to support and enforce both the
laws and the Constitution. That is to say, I made a promise—a
contract. In exchange for receiving power and lifetime tenure I
agreed to limit the extent of my discretion.92
What is the content of that judicial promise? Article VI declares that “[t]his
Constitution . . . shall be the supreme law of the land” and goes on to state that
“judicial officers, both of the United States and of the several states, shall be
bound by oath or affirmation to support this Constitution.” This same
Constitution that is the “supreme law of the land” is the Constitution that
“judicial officers” are bound by law and in conscience to support.
We emphasize, “in conscience.” At common law, oaths were charged with
religious significance.93 Judges confronted by efforts to sway their will in the
direction of government power steeled themselves not to fear men but only God
and to give effect to the law of the land by emulating the dispassionate, impartial
giver of the highest law.94
In an insightful paper, Richard Re explains how the oath “gives rise to
personal moral obligations” in our more secular age. Re observes that “[n]o
hand—either dead or alive—forces individuals to run for office, take the oath, or
lead others to think that they will take ‘the Constitution’ seriously.”95 Once
officials do make such a promise, however, they are entrusted with power that
they would not otherwise possess, a power that—as discussed above—has moral
implications.
Accordingly, while a mere document cannot create binding moral
obligations simply in virtue of its existence, officials who are entrusted with
power over other people that they would not otherwise possess in virtue of a
voluntary promise to adhere to the terms of that document are morally bound to
92
Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1122
(1998). Because one of us denies that contract law is based on “promise,” we doubt that the
formal promise of the oath constitutes a “contract” strictly speaking. See Randy E. Barnett,
Contract Is Not Promise; Contract Is Consent, 45 Suffolk U. L. Rev. 647 (2012). But we
nevertheless insist that the judicial promise establishes a real, not fictitious, voluntary fiduciary
relationship that is legally and morally binding.
93
See LAW AND JUDICIAL DUTY, supra note 77, at 106-12.
94
Id.
95
Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. 299 (2016). See also JOSEPH
RAZ, THE AUTHORITY OF LAW 239 (2d ed. 2009) (“[A]n oath may impose a moral
obligation to obey (e.g. when voluntarily undertaken prior to assuming an office of state which
one is under no compulsion or great pressure to assume).”); STEVE SHEPPARD, I DO
SOLEMNLY SWEAR: THE MORAL OBLIGATIONS OF LEGAL OFFICIALS 107 (2009)
(“Oaths are not taken alone . . . They are said aloud, in a manner that ensures at least the
appearance of being voluntary. The oath represents an assurance that invites reliance upon those
subject to the official’s authority.”).
20
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
keep that promise. The oath thus “functions as a bridge between the document
and the duty to obey it.”96
More specifically, an oath to support the Constitution creates a morally
binding promise to “to support the historical document known by that name” and
thus “to adopt an interpretive theory tethered to the Constitution’s text and
history.”97 Were judges free to interpret the Constitution however they saw fit, in
the service of whatever ends they deemed desirable, it is not clear what
significance the oath would have.
We agree with Re that the oath creates a morally binding promise. We
depart from him, however, in an important respect. Re contends that officials
have a promissory obligation to adhere to the public’s understanding of “the
Constitution” at the time they take their oaths.98 But the Constitution, as publicly
understood at the time that a given official took his or her oath, may bear little
resemblance to “this Constitution,” if in fact the meaning of a particular
provision of “this Constitution” was fixed at the time of its enactment.99
This Constitution presents itself as a historically-situated text. As
Christopher Green has shown, indexical language—language whose reference
shifts from context to context, like “this,” “now,” “here” and “that”—throughout
the Constitution points toward a historical document.100 Thus, the oath-taker’s
authority under “this Constitution” is contingent upon fidelity to that document.
If in fact the meaning of particular provisions in that document was fixed at the
time that they were enacted into law, an oath-taker’s authority is contingent upon
his or her fidelity to that meaning. An oath-taker may understand him or herself
to be bound to give effect to the current public understanding of the Constitution
and members of the public may expect him to give effect to that understanding,
but that is not the kind of authority that this Constitution confers. Public
acceptance is a necessary but not sufficient condition for the authority that this
Constitution does confer.
It is critical to understand why public acceptance alone could never
legitimate a particular claim of moral authority by a government official over a
private citizen under our constitutional regime. As Lysander Spooner explained
with nearly unparalleled audacity, the conditions necessary for the actual consent
96
Re, supra note 95, at 308.
Id. at 323-4.
98
Id. at
99
But see William Baude, Is Originalism Our Law?, 115 COLUM. L. REV. 2349 (2015)
(arguing that because “inclusive originalism” is the publicly accepted law of the United States,
the oath would, on Re’s premises, commit judges to a form of originalism).
100
See Christopher Green, “This Constitution”: Constitutional Indexicals as a Basis for
Textualist Semi-Originalism, 84 Notre Dame L. Rev. 1607 (2008). For similar arguments, see
Michael Stokes Paulsen, Does the Constitution Prescribe Rules for its Own Interpretation?, 103
Nw. U. L. REV (“‘This Constitution,’ means, each time it is invoked . . . the text of the written
Constitution . . . the document specifies the document as authoritative.”); Akhil Reed Amar, The
Document and the Doctrine, 114 Harv. L. Rev. 26, 33 (2000) (“With these words [in the
Supremacy Clause], the Constitution crowns itself king; judges and other officials must pledge
allegiance to the document.”).
97
21
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
of every member of the public to be bound in conscience to accept any such
claim on the basis of consent could never be met.101 One of us has elaborated in
great detail why Spooner was correct in this respect.
The Constitution was not adopted through a unanimous vote, nor even by a
majority of all persons in the country at the time; in no place could women,
children, indentured servants, or slaves vote; and property requirements limited
the voting rights of white males and free black males.102 Even if the Constitution
had been adopted by unanimous consent, that consent could not bind future
generations. For consent to bind a person, there must be a way to say “no” as
well as “yes” and—to the extent that we are speaking of rational adults who have
not authorized others to act on their behalf—that person himself or herself must
have consented.103
For we the living, voting is insufficient to establish consent—people may
vote to secure an outcome that is more favorable to them than it otherwise would
be but not because they are “consenting” to everything that a particular candidate
would do in office.104 “Tacit” consent will not do—mere acquiescence in
governmental authority would legitimate the most oppressive exercises of that
authority. Failure to physically resist such authority asks too much of those who
would refuse consent. Simply remaining in a given location similarly says
little—no one seriously argues that African-Americans who remained in the
South while Jim Crow laws were on the books “consented” to those laws.
Likewise free blacks living in the North did not tacitly consent to the
discriminatory laws under which they lived by failing to move to Canada. Thus,
the authority of public officials under the Constitution must rest upon something
other than actual consent.
Further, even if we supposed (counterfactually) that consent could
legitimate the authority claimed by a judge who understood him or herself only
to be bound by the Constitution’s current public meaning, we doubt that judges,
other public officials, or members of the public generally understand oaths in this
way. Here is the current text of the oath required of all federal officers:
I, AB, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to
enter. So help me God.105
101
See WORKS, supra note 28, at 125 (“Government is in reality established by the few; and
these few assume the consent of all the rest, without any such consent being actually given.”).
102
RESTORING THE LOST CONSTITUTION, supra note 40, at 20.
103
Id. at 21.
104
Id. at 15.
105
5 U.S.C. §3331 (2015).
22
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Do these words communicate an intention to abide by the public
understanding of the Constitution at the time of each official’s oath, such that,
say, Earl Warren in 1953 communicated—and would have been understood to
communicate—an intention to abide by the then-current public understanding
that the Constitution did not prohibit racial segregation?106 Re provides no
evidence that either oath-takers or members of the public understand the oath in
that way.
Green, however, includes an exhausting footnote detailing many statements
by officials of all political stripes concerning the significance of their oath and
finds that officials “repeatedly and emphatically equate current oaths with the
requirement in Article VI,” which in turn refers to “this Constitution.”107 To the
extent that these officials secretly intended something that they did not say,
construing their words in light of their secret intentions is in considerable tension
with any consent-based theory of judicial authority.108
Thus, we hold that judges who voluntarily assume public office through an
express oath to support “this Constitution” thereby become fiduciaries who bind
themselves morally and legally to ascertain and give effect to the Constitution’s
original public meaning. That public meaning constitutes the instructions that
they must follow.
But how, precisely, are judges to follow those instructions when the text of
the Constitution does not yield a single determinate answer? If the duties
imposed on fiduciaries are unique in the strength of the particular commitments
they require, the law also steps in to protect ordinary parties to contracts against
abuses of the discretionary power that frequently delegated by private contracts.
The contract law doctrine of the duty of good-faith performance enables
judges to police opportunism by preventing parties from using discretion
accorded them under the express terms of an agreement to defeat the
fundamental purpose of the agreement. In what follows, we will consider how a
model of good-faith contractual performance can give us insight into how judges
ought to exercise their own discretionary power.
106
That is, prior to Brown v. Board of Education, 349 U.S. 294 (1954) and Bolling v. Sharpe,
347 U.S. 497 (1954), in which the Court, with Chief Justice Warren writing, held racial
segregation in public education to be unconstitutional.
107
See Green, supra note 99 at 1645 n. 20.
108
Spooner noted this tension in contending with Wendell Phillips, a fellow abolitionist who
(like William Lloyd Garrison) argued that the Constitution expressly authorized slavery. See
Barnett, supra note 11, at 999-1010 (summarizing their debate). Phillips, drawing upon excerpts
from the recently-disclosed notes of the constitutional convention by James Madison, appealed to
the supposed intentions of the framers to protect slavery—intentions not embodied in the text
itself. Spooner responded that such intentions, being secret, could not bind later interpreters. See
WORKS, supra note 25, at 223 (“The intentions of the framers of the constitution . . . have
nothing to do with fixing the legal meaning of the constitution . . . The instrument, when it came
from their hands, was a mere proposal, having no legal force or authority. It finally derived all its
validity and obligation, as a frame of government, from its adoption by the people at large.”).
23
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
A. The Contractual Duty of Good-Faith Performance: The
Foregone Opportunities Theory
The duty to perform contracts in good faith has long been recognized as a
general principle of contract law.109 It rests upon factual premises that are easily
appreciated: people are not omniscient, they do not have endless time, they
cannot make agreements that provide for every contingency, and they would be
discouraged from making agreements at all if they had to worry about every
exercise of discretion given to another party being used to defeat the purposes for
which they entered into agreements in the first place.110 Moreover, parties
contract to receive the expertise of others that they themselves lack. 111 That
expertise must, by necessity, be exercised at the discretion of the expert party.
The duty of good-faith performance is a “gap-filling” doctrine that is
calculated to preserve people’s reasonable expectations in receiving the
performance of the other party and the benefit of their bargains, notwithstanding
any discretion in performance that is delegated by the contract to the other party.
The doctrine operates to thwart exercises of discretion that violate those
reasonable expectations, even if that behavior does not violate any express
contractual terms.112
Because it is implicit in every contract, the duty of good-faith performance
cannot be waived (though the scope of performance can be more precisely
defined in the contract). Every United States jurisdiction follows common law
rules setting forth a duty of good faith in the performance of contracts, and the
Uniform Commercial Code, adopted by the legislatures of forty-nine states,
includes a requirement of good faith in the performance of contracts for the sale
of goods.113
Though entrenched in our law, the duty of good-faith performance has at
times been bedeviled by uncertain and inconsistent formulations and
applications. Part of the blame for the latter lies with the academy. In the 1950s
and 1960s, contracts scholars, adopting the insights of the “legal realists,”
rejected approaches that would reduce the complex world of commercial practice
to general concepts or rules.114
109
See E. Allan Farnsworth,Good Faith Performance and Commercial Reasonableness under
the Uniform Commercial Code, 30 U. Chi. L. Rev. 666, 671 (1963) (tracing the duty of goodfaith performance back to Roman law).
110
See Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 Va.
L. Rev. 821-22 (1992).
111
Id. at 892.
112
See Michael P. Van Alstine, Of Textualism, Party Autonomy, and Good Faith, 40 Wm. &
Mary L. Rev. 1223, 1255 (1999) (“[A] core function of the duty of good faith lies in imposing
limitations on a party's exercise of a discretionary power to control an aspect of a contractual
relationship after formation.”).
113
See U.C.C. §1-201(b)(20) (2011)(defining “good faith” as “honesty in fact and the
observance of reasonable commercial standards of fair dealing.”).
114
For a brisk overview of this intellectual history, see Randy E. Barnett, The Richness of
Contract Theory, 97 Mich. L. Rev. 1413, 1414-17 (1999) (reviewing Robert A. Hillman, THE
24
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Typical of this scholarship is Robert Summers’ influential 1968 article,
Good Faith in General Contract Law and the Sales Provisions of the Uniform
Commercial Code, in which Summers proposed a series of six categories of bad
faith performance: (a) evasion of the spirit of the deal, (b) lack of diligence and
slacking off, (c) willfully rendering only “substantial performance,” (d) abuse of
a power to specify contract terms, (e) abuse of a power to determine compliance,
and (f) interfering with or failing to cooperate in the other party’s
performance.115 “[G]eneral definitions of good faith either spiral into the
Charybdis of vacuous generality or collide with the Scylla of restrictive
specificity,” wrote Summers—thus, good faith was “a phrase with no general
[positive] meaning . . . of its own” but which served only to exclude a diverse
array of concrete forms of bad faith.116
In the 1970s and 80s, scholars dissatisfied with such “realist” approaches
began to develop systematic theories in a variety of areas of law, seeking to
conceptualize and render more definite what was said to be irreducibly
complex.117 One such theory was developed by Steven Burton, which he
presented in his 1980 article, Breach of Contract and the Common Law Duty to
Perform in Good Faith.118 Surveying 400 cases in which courts expressly
referred to good faith performance, Burton contended that good faith in contract
law operates as a means of ensuring that parties do not use the discretion
accorded them under the terms of a contract to “recapture opportunities . . .
foregone on entering the contract, interpreted objectively.”119
According to Burton, good-faith performance “occurs when a party’s
discretion is exercised for any purpose within the reasonable contemplation of
the parties at the time of formation—to capture opportunities that were preserved
upon entering the contract.” The doctrine of good-faith performance thus
“directs attention to the opportunities foregone by a discretion-exercising party at
formation, and to that party’s reasons for exercising discretion during
performance.”120 The identity of foregone opportunities is determined by
focusing on the expectations of reasonable persons in the position of the
dependent parties—expectations as to benefits to be received by the promisee
RICHNESS OF CONTRACT LAW: AN ANALYSIS AND CRITIQUE OF CONTEMPORARY
THEORIES OF CONTRACT LAW (1997)).
115
See Robert S. Summers, "Good Faith" in General Contract Law and the Sales Provisions of
the Uniform Commercial Code, 54 VA. L. Rev. 195 (1968).
116
Id. at 206.
117
See Randy E. Barnett, Contract Scholarship and the Reemergence of Legal Philosophy, 97
Harv. L. Rev.1223 (1984) (tracing the decline of the legal realist movement and the rise of
normative legal philosophy).
118
Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good
Faith, 94 HARV. L. REV. 369 (1980)
119
Id. at 373.
120
Id. (emphases added).
25
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
and expectations as to costs (foregone opportunities) to be borne by the
promisor.121
Thus, whether a particular discretion-exercising party acted in order to
recapture foregone opportunities as objectively provided by the agreement is a
question of subjective intent of the party exercising discretion. If a discretionexercising party uses its control under the letter of the contract for the purpose of
recapturing a foregone opportunity—even when the conduct is within the letter
of the contract because the letter has granted the discretion—the discretionexercising party has acted in bad faith. Burton offered several illustrative
examples from the case law, two of which involved contractual conditions the
satisfaction of which was in the control of one party.
In Ide Farm & Stable, Inc. v. Cardi,122 a contract for the sale of land was
conditioned on the buyer’s obtaining financing. The buyer did not go through
with the deal, claiming an inability to obtain financing. The seller sued, claiming
that the buyer had failed to perform in good faith. The evidence indicated that the
buyer had approached four banks in the hopes of obtaining financing, but was
refused because of a tight money market. In this case, wrote Burton, “the reason
for the buyer’s failure was indeed the very one that induces the typical financing
condition in land sale contracts” and thus the “buyer’s discretion [in declining to
accept financing at the proffered terms] . . . was exercised in good faith in light
of the purpose that parties normally have in mind in so conditioning a promise to
buy land.”123
Burton contrasted Cardi with Fry v. George Elkins Co.,124 which involved a
sale of a residential home that was conditioned on the buyer securing financing
at a specified rate. Here, the buyer was informed at the time of the formation of
the contract that he could not obtain such financing from a bank but that it could
probably be obtained from a particular mortgage company that already had a
substantial loan on the property. Nonetheless, the buyer only approached banks
and made no application or inquiry of the mortgage company. The evidence
indicated that the buyer had lost all interest in the house and had decided to move
to Hawaii—a reason decidedly “outside the normal reasons for so conditioning a
promise to buy a house” and thus grounds for concluding that the buyer had
subjectively “sought to recapture an opportunity foregone upon entering the
contract.”125 (Of course, the buyer was always free under the terms of the
contract to buy both houses.)
Burton’s presentation of his theory prompted an exchange with Summers
that illuminated the differences between the two men and their modes of
scholarship. Summers contended that “the very idea of good faith . . . is simply
not the kind of idea that is susceptible of such a definitional approach” and that
121
Id. at 387.
110 R.I. 735 (1972).
123
Burton, supra note 118, at 402 (emphasis added).
124
162 Cal.App.2d 256 (1958).
125
Burton, supra note 117, at 402.
122
26
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Burton’s theory would not provide any useful guidance.126 Burton responded that
his theory, which provided a “simplified representation of a complex reality”
would be immensely useful because it would enable judges to “focus on complex
webs of relationships among the facts.”127
Difficult though it may be in a given case to determine whether a party has
exercised discretion for the purpose of recapturing a foregone opportunity,
Burton’s theory focuses judicial attention in the right place. People cannot read
each other’s minds, and they must rely upon appearances when deciding whether
to enter into a contractual relationship—that is one of the primary reasons that
they put their agreements in writing.128 But, language is limited, as is time and
foresight.
Burton’s model equips judges to look for the right kind of thing: whether
discretionary power under the terms of a contract has been used to undercut the
purpose for which discretion was given, as assessed with reference to the parties’
reasonable expectations at the time of the contract’s formation, and evidence that
one party had a motive for abusing his discretion.
B. Implications for Judicial Duty
Judges are fiduciaries, not ordinary contracting parties. Yet Burton’s focus
on the abuse of discretionary power under the letter of contracts suggests the
utility of his theory of good-faith performance as a means of guiding
constitutional construction. Judges, after all, also receive their power from the
letter of a written instrument and by necessity they enjoy a great deal of
discretion, owing to the nature of the instructions given them—instructions the
linguistic meaning of which may not yield determinate answers in cases that
judges are duty-bound to decide.
Indeed, Burton appreciated how his theory could serve as a means of
guiding the exercise of judicial discretion, elaborating a comprehensive theory of
good-faith adjudication in his 1992 book, Judging in Good Faith—albeit without
advocating any particular theory of constitutional interpretation.129 Burton’s
theory is particularly attractive in the context of concerns about constitutional
construction. Such concerns closely resembles those raised about loosey-goosey
“legal realist” approaches to good-faith performance in contract law that seemed
to authorize complete judicial discretion to “do justice” between the parties, and
which Burton’s theory was designed to discipline and constrain.
No less than contracts, constitutions consist in more than the linguistic
meaning of their text. At common law and in eighteenth-century America, the
distinction between the linguistic meaning of a provision of a written instrument
126
Robert S. Summers, The General Duty of Good Faith- Its Recognition and Conceptualization,
67 CORNELL L. REV. 810, 829-30 (1982}.
127
Steven J. Burton, More on Good Faith Performance of a Contract: A Reply to
Professor Summers, 69 Iowa L. Rev. 497, 509-10 (1984).
128
See RESTORING THE LOST CONSTITUTION, supra note 40, at 105.
129
STEVEN J. BURTON, JUDGING IN GOOD FAITH (1992).
27
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
and that instrument’s fundamental purpose or function—whether a contract or a
constitution—was expressed through a Christian trope: the distinction between
the “letter” and the “spirit.”130 While ordinarily the letter was sufficient to
resolve a given question, where the letter was obscure, judges followed the spirit.
An instructive example: When Edmund Pendleton, then President of the
Virginia Court of Appeals, gave his opinion in the 1782 case of Commonwealth
v. Caton,131 he said that because “[]he language of the clause [of the Virginia
Treason Act] . . . admits of both the constructions mentioned by the attorney
general,” the constitutional question should be “decided according to the
spirit.”132 Pendleton stated that he “prefer[red] the first, as most congenial to the
spirit, and not inconsistent with the letter, of the constitution.”
In this respect, Pendleton, like American judges more generally,133 followed
Sir William Blackstone, who wrote that “the most universal and effectual way of
discovering the true meaning of a law, when the words are dubious, is by
considering the reason and spirit of it . . . for when this reason ceases, the law
itself ought likewise to cease with it.”134 The spirit of the law was considered to
be part of the law—no less than the letter.135
The distinction between letter and spirit—and recourse to the spirit upon
failure of the letter—captures an enduring truth. The Constitution’s provisions—
like the Constitution as a whole—are calculated to serve particular functions,
and they would be without value if they did not do so. Understanding text may
require an understanding of those functions.136 Lacking certainty about how to
130
LAW AND JUDICIAL DUTY, supra note 77 at 52-6.
8 Va. (4 Call) 5 (1782).
132
Id. at 16.
133
See Robert G. Natelson, The Founders' Hermeneutic: The Real Original Understanding of
Original Intent , 68 Ohio St. L.J. 1239 (2007) (reliance upon the “spirit,” “sense,” “meaning,” or
“reason” of an enactment “for purposes of documentary constructions—sometimes even at the
expense of the literal wording—reflected the norm in Anglo-American jurisprudence.”).
134
WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 59-61 (St.
George Tucker ed., William Young Birch and Abraham Small 1803).
135
Consider a much-quoted passage by Edmund Plowden, among the most highly regarded legal
authorities in England and America and often cited by American judges. See Eyston v. Studd,
(C.P. 1574) 2 P1. Com. 459, 465, 75 Eng. Rep. 688, 695 (reporter's commentary).
[I]t is not the words of the law, but the internal sense of it that makes the law, and our
law (like all others) consists of two parts, viz. of body and soul, the letter of the law is
the body of the law, and the sense and reason of the law is the soul of the law, quia ratio
legis est anima legis. [“For the reason of the law is the soul of the law.”] And the law
may be resembled to a nut, which has a shell and a kernel within, the letter of the law
represents the shell, and the sense of it the kernel, and as you will be no better for the
nut if you make use only of the shell, so you will receive no benefit by the law, if you
rely only upon the letter, and as the fruit and profit of the nut lies in the kernel, and not
in the shell, so the fruit and profit of the law consists in the sense more than in the letter.
For Founding-era American citations to Plowden, see Natelson, supra note 133, at 1253 n. 64.
136
See Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev.
479, 500 (2013) (explaining that the “public context may include facts about the general point or
purpose of the provision (as opposed to “the intention of the author”), and those facts may
resolve [textual] ambiguities.”).
131
28
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
resolve a given case on the basis of the Constitution’s linguistic meaning alone,
judges must make a decision on the basis of some reason. To formulate a rule
with reference to the function that the relevant provision is designed to perform
is not a matter of making the law “the best it can be” but giving effect to the law
as best one can. A judge who decided a case on the basis of some other reason
would by doing so depart from the law entirely
In Burton’s terms, then, judges upon taking their oath receive discretionary
power. The function of that power is to ensure that private citizens have access to
an impartial adjudicator who will measure assertions of government power
against the law of the land. With judicial power comes the duty to follow the
instructions in “this Constitution.”
To do so, judges must forego the opportunity to act on the basis of anything
but the letter and the spirit of the law. They must not only act consistently with
the letter of the instrument from which they draw their power—they must not use
their discretion under that instrument to give effect to their own beliefs and
desires. Where the letter of the Constitution is unclear they must turn to the law’s
spirit. In the next section, we provide guidelines that judges can use to engage in
good-faith construction.
IV. CONSTRUCTING THE CONSTITUTION IN GOOD FAITH
No theory of constitutional interpretation or construction can ensure that
judges will not betray the people’s trust if they are determined to do so. But by
articulating guidelines for how judges are to engage in good-faith construction
and thereby enable observers to identify abuses of judicial discretion, we can
make it both more likely that good-faith construction will take place and badfaith construction will be detected and censured.
A. Guidelines for Good-Faith Construction
It bears emphasizing that, although constitutional construction necessarily
takes place every time constitutional text is given legal effect, judges need not—
indeed, should not—enter into the construction zone in every constitutional case.
The Constitution’s communicative content is rich. Seemingly sparse text—like
the text of Article III—can refer to concepts that have been defined and refined
in legal thought and doctrine, have informed governmental practice, and have
been the subject of political theory for centuries.
Terms that appear to be vague or “thin” may be considerably less vague and
much “thicker” after contextual enrichment, than judges or law professors may
imagine from their armchairs. Seemingly vague provisions like the Eighth
Amendment’s ban on “cruel and unusual punishment” can be rendered more
precise when contextually enriched than is commonly taught.137 The “recess” in
the Recess Appointments Clause refers to the period between “sessions” of
137
See J.F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to
Cruel Innovation, 102 Nw. U. L. Rev. 1739 (2008).
29
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Congress.138 “Commerce . . . among the several states” encompasses activity of
particular kinds: the trade, exchange and movement of goods.139 The so-called
“general welfare clause,” is not an open-ended grant of congressional power to
tax and spend in order to “provide for the . . . general welfare” but a limitation on
congressional power. It imposes a fiduciary duty of impartiality and thus
prohibits Congress from appropriating money for projects that serve primarily
local or special interests.140
The attempt by originalists to recapture the more determinate “thicker”
meaning of these and other clauses is in its relative infancy in wake of the openended atextual approaches of the Warren and Burger Courts—and even of the
Rehnquist and Roberts Courts, in which only a few of the justices have been
consistent in their commitment to originalist textualism. And originalist
constitutional scholars have been searching for the original public meaning of
the text—as opposed to the original intentions of the framers—for little more
than twenty years.
Finally, as Gary Lawson has observed, the early originalists—like Raoul
Berger and Robert Bork—were in the final analysis moral readers.141 They were
primarily focused on “judges, democracy, constraint, and authority,” not on
“meaning, language, and communication.”142 The empirical turn in
originalism—originalism’s shift from (as Lawson puts it) an “intellectual rather
than political enterprise”—is quite recent.143
Once enriched, the seemingly vague or ambiguous language of the
Constitution may be rendered precise enough to enable judges to arrive at many
more answers to interpretive questions that are more plausible than any
competing answers—answers that are “thick” enough to resolve more particular
cases. To the extent this happens, judges should not apply rules of construction
to resolve an uncertainty that does not exist. A good-faith effort to resolve a case
on the basis of interpretation alone—to ascertain and simply give legal effect to
the communicative content of the relevant provision—must precede any activity
within the construction zone.
And it is bad faith for a judge who is engaged in interpretation to seek to
establish an ambiguity against the weight of the evidence. For example, we think
the Court was interpreting the Contracts Clause in bad faith in Home Building &
138
See Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, UCLA
L. Rev. 1487 (2005).
139
See Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev.
101 (2001).
140
See Robert G. Natelson, Judicial Review of Special Interest Spending: The General Welfare
Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2006).
141
See Gary Lawson, Confessions of an Empirical Reader, Or, Could Fleming Be Right This
Time? at *21-2 (Boston University School of Law Public Law & Legal Theory Working Paper
No.
15-46,
2015)
available
at
http://www.bu.edu/law/files/2015/12/ReflectionsofAnEmpiricalReader.pdf
142
Id.
143
Id. at *23.
30
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Loan Ass’n v. Blaisdell,144 which involved a debtor relief statute that exempted
property from foreclosure even though the debtor had defaulted on his
contractual mortgage obligations. The Constitution’s prohibition against state
laws “impairing the obligation of contracts” does not recognize any exceptions,
and the Court simply had no warrant to ignore the meaning of the law that
governs the State of Minnesota—and the judges themselves—by ingenious
“interpretations.” If the judges wished to invoke a “necessity” exception to the
Constitution, they ought to have frankly asserted it. But the fact that they did not
do that is evidence that they knew they lacked such a power as judges.
It is also bad faith to disregard the text in pursuit of the spirit of a provision.
We believe that the Court interpreted the Privileges or Immunities Clause of the
Fourteenth Amendment in bad faith in the Slaughter-House Cases145 when it
rendered that clause a virtual nullity four years after the Fourteenth Amendment
was ratified. The Slaughter-House Cases concerned a Louisiana statute that gave
a private corporation composed of seventeen butchers an exclusive right to
maintain a central slaughter-house south of New Orleans and required all
slaughtering to be performed at that facility. All other butchers—numbering
about 1,000—who were not members of the corporation and sought to use the
facility had to pay a fee for the privilege. A group of independent butchers
challenged the statute, charging that the monopoly constituted an arbitrary
burden on their right to pursue a lawful calling—a right that they claimed was
secured against the states by the Privileges or Immunities Clause.146
A 5-4 majority of the Court rejected the butchers’ arguments. Writing for
the majority, Justice Samuel Miller determined that the Privileges or Immunities
Clause protected only a handful of incidents of “national citizenship,” including
the right to travel to the nation’s capital, the right to protection on the high seas
and foreign lands, and the right to visit subtreasuries.147 Miller’s interpretation
was guided by his understanding of the “one pervading purpose” of the
Reconstruction Amendments, namely, “the freedom of the slave race, the
security and firm establishment of that freedom, and the protection of the newlymade freeman and citizens.”148 That purpose obviously did not encompass the
protection of white butchers against slaughtering monopolies.
144
290 U.S. 398 (1934)
83 US 36 (1873).
146
The only full-length book on the Slaughter-House Cases is RONALD LABBÉ &
JONATHAN LURIE, THE SLAUGHTERHOUSE CASES (2003). While it provides a useful
history of the case, its discussion of the legal issues is deeply flawed. For a critique, See Timothy
Sandefur, Slaughtering the Fourteenth Amendment, 4 CLAREMONT REV. OF BOOKS 39
(2004),
available at http://www.claremont.org/publications/crb/Id.1381/article_detail.asp.
(among other errors, the authors “do not describe the background or passage of the 14th
Amendment” and they dismiss the butchers' arguments as “clever and cynical” without
mentioning “the myriad cases which, before 1873, upheld the common-law right to earn a
living”).
147
Slaughter-House Cases, 83 US at 80-1.
148
Id. at 71.
145
31
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Had Miller been more attentive to the text, he might have sought to
determine why the text of Section One of the Fourteenth Amendment—unlike
Section Two, or the Fifteenth Amendment—made no mention of race.149 The
omission of any mention of race was a clue that the Fourteenth Amendment had
a broader function than that which Miller identified. The Fourteenth Amendment
was certainly designed to protect recently freed African-Americans from those
who (in Miller’s words) had “formerly exercised unlimited dominion over
them.”150 Yet the amendment generally—and the Privileges or Immunities
Clause in particular—was by no means limited to that function. When one
situates the amendment in the context of Republican constitutional thought that
held national citizenship to be a guarantee of natural and civil rights that states
could not abridge, it becomes apparent that the Privileges or Immunities Clause
was designed to affirm beyond any doubt that states must respect the natural and
civil rights of all citizens and to expressly authorize the federal government,
including the federal judiciary, to enforce those rights.151
It is noteworthy that Miller misquoted the text of the Privileges and
Immunities Clause of Article IV, Section 2 in a way that obscured—perhaps
deliberately152—how many Republicans, influenced in this regard by abolitionist
constitutionalists like Joel Tiffany, had come to understand that provision.153 The
text provides that “[t]he citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.”154 Many Republicans had
come to understand this text as a guarantee that no American citizens could be
deprived of their natural and civil rights by a state, not as a mere “comity clause”
that guarantees equal treatment to out-of-state visitors to particular states155—and
there is compelling evidence that this understanding was incorporated into the
Privileges or Immunities Clause.156
149
Miller noted the distinction, but passed quickly over it. Id. at 71-2.
Id. at 72.
151
For accounts of the political-philosophical and constitutional thought that informed the
Fourteenth Amendment, see generally JACOBUS TENBROEK, THE ANTISLAVERY
ORIGINS OF THE FOURTEENTH AMENDMENT (1951); JACOBUS TENBROEK, EQUAL
UNDER LAW (1965); WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY
CONSTITUTIONALISM IN AMERICA, 1760- 1848 (1977); MICHAEL KENT CURTIS, NO
STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF
RIGHTS (1986) [hereinafter NO STATE SHALL ABRIDGE]; Daniel A. Farber and John E.
Muench, Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1994);
Rebecca E. Zietlow, Congressional Enforcement of Civil Rights and John Bingham’s Theory of
Citizenship, 36 Akron L. Rev. 717, 719-39 (2003); Randy E. Barnett, Whence Comes Section
One?: The Abolitionist Origins of the Fourteenth Amendment, 3 J. LEG. ANALYSIS 165 (2011).
152
See LOUIS LUSKY, BY WHAT RIGHT? A COMMENTARY ON THE SUPREME
COURT'S POWER TO REVISE THE CONSTITUTION 201 (1975) (accusing Miller of
“deliberately misquot[ing]” the text).
153
See TIFFANY, supra note 28, at 97-9.
154
US CONST. art. IV, §2.
155
See NO STATE SHALL ABRIDGE, supra note 151, at 216.
156
Id. Even those who deny that the original meaning of Article IV absolutely protects natural
rights acknowledge that Republicans in the Thirty-ninth Congress so understood it and sought to
150
32
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Leading Republicans in the Thirty-ninth Congress drew upon Justice
Bushrod Washington’s opinion in Corfield v. Coryell,157 in which Washington
interpreted the Privileges and Immunities Clause to recognize a body of natural
rights and positive civil rights, to explain the meaning of the term “privileges or
immunities.”158 Senator Jacob Howard, who managed the Joint Committee in the
Senate and presented the Fourteenth Amendment on behalf of the committee,
cited Corfield and used Washington’s language to identify the privileges and
immunities that the Fourteenth Amendment would secure. No one contradicted
Howard—and there was no extended discussion of Section 1 after he spoke.159
Yet Miller quoted the text of the Privileges and Immunities Clause as
follows: “The citizens of each State shall be entitled to all the privileges and
immunities of citizens of the several States.”160 As Richard Aynes has pointed
out, the effect was to “ma[ke] th[e] provision appear to protect state, not national
rights.”161
Like the Court in Blaisdell, the Court in the Slaughter-House Cases did not
candidly assert that it was departing from the law of the land in pursuance of its
own will—perhaps because it disagreed with the wisdom of the “radicals” in
Congress who managed to get the Fourteenth Amendment into the Constitution.
But the majority’s reasoning left little doubt that the justices were seeking to
avoid an interpretation that they believed would “radically change[] . . . the
whole theory of the relations of the State and Federal Governments to each other
and of both of these governments to the people.”162
ratify that understanding in the Fourteenth Amendment. See David S. Bogen, The Privileges and
Immunities Clause of Article IV, 37 Case Western Reserve Law Review 794, 843 (1987)
(“[Republicans believed that] [s]lavery was constitutional, but contrary to fundamental principles
of natural law. The symbolic honor and integrity of the Constitution could be saved by
identifying it with fundamental rights. This the framers of the Fourteenth Amendment attempted
to do in the privileges and immunities clause.”) For the now-dominant comity-clause
interpretation, See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY
253 (2005) (“Article IV essentially said that whenever a free man or woman (or child, for that
matter) ventured into another state, that state had to give him or her the same civil rights that it
would give its own citizen in a comparable situation.”) But see Chester J. Antieau, Paul's
Perverted Privileges or the True Meaning of the Privileges and Immunities Clause o f Article
Four, 9 Wm. & Mary L. Rev. 1 (1967) (contending that Article IV absolutely protects citizens
from state action or inaction “that denie[s] men their natural rights, privileges and immunities.”).
157
NO STATE SHALL ABRIDGE, supra note 151, at 216.
158
6 F. Cas. 546 (1823). Washington was sitting as a circuit court trial judge.
159
Id.
160
Slaughter-House Cases, 83 U.S. at 75 (emphasis added).
161
See Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, The Fourteenth
Amendment, and the Slaughter-House Cases, 70 Chi.-Kent. L. Rev. 627, 647 (1994).
162
Slaughter-House Cases, 83 US at 78. See G. Edward White, Reconstructing the Constitutional
Jurisprudence of Salmon P. Chase, 21 N. Ky. L. Rev. 41, 115-16 (1993) (positing that the
majority’s approach was dictated by “antebellum assumptions” that individual rights were largely
left to the states for protection and corresponding concerns that the interpretation of the
Fourteenth Amendment advanced by the butchers would allow “both the federal courts and
Congress [to] get into the business of displacing the private law of the states.”).
33
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
The possibility that the Fourteenth Amendment was designed to do precisely
that—or that it was designed to implement an understanding of the “whole
theory and relations of the State and Federal Governments to each other and of
both of these governments to the people” that was contrary to that of the
justices—was not seriously pursued. As a consequence, the Court failed to
capture either the letter or the spirit of the law.
When, however, interpretation alone does not yield enough information to
resolve a case, judges must enter the construction zone—and they will, whether
they acknowledge the interpretation-construction distinction or not. A rule must
be applied—either a previously formulated rule or a new one. But merely saying
that an implementation rule must be consistent with the letter of the law—which
is what advocates of the interpretation-construction have long said—is not
enough.163
When a determinate answer cannot be ascertained through interpretation,
either because the text is inherently vague or irreducibly ambiguous or because
judges are simply unable, despite their best, most disciplined efforts, to attain the
needed clarity concerning the answer to a particular interpretive question, judges
should turn to the spirit of the relevant text. Crucially, identification of the spirit
entails recourse to many of the same materials as the identification of the letter.
For any given provision of the Constitution, there are reasons that the particular
words were chosen, functions that those words were designed to perform.
Discovering those functions entails investigation into the context in which
provisions were enacted. This is familiar turf for originalists—the inquiry into
the law’s spirit is no less empirical, no less grounded in publicly available facts,
than inquiry into the law’s letter. Constitutions, statutes, and contracts are
products of human design, and one need not read minds to determine what they
are designed to do.164
Judges do, however, need to take care to properly identify the level of
abstraction at which the function of a provision should be characterized, just as
they must take care to properly identify the level of abstraction at which to
understand particular words. There is no way to identify the appropriate level of
abstraction without examining the evidence.
John McGinnis and Michael Rappaport have rightly warned about the
dangers of the “abstract meaning fallacy”—concluding that constitutional
language has an abstract meaning without sufficiently considering the alternative
163
See, e.g., LIVING ORIGINALISM, supra note 1, at 341-2 n. 2 (“Interpretations and
constructions may not contradict original meaning, therefore once we know the original meaning
of the text, it trumps any other form of argument”); RESTORING THE LOST CONSTITUTION,
supra note 30, at 101-2 (“[A]ny construction must not contradict whatever meaning has been
discerned by interpretation.”).
164
See Richard A. Posner, Legal Realism, and the Interpretation of Statutes and the Constitution,
37 CASE W. RES. L. REV. 179, 196 (1986) (observing that “[a] document can manifest a single
purpose even though those who drafted it and approved it had a variety of private motives and
expectations.”).
34
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
possibilities.165 Judges must be equally wary of settling upon abstract intention
without closely investigating historical sources, with an eye to capturing, not the
personal intentions and expectations of the framers, but what functions that the
ratifiers and the public would have reasonably understood particular provisions
to serve. It is the publicly available spirit that should be sought.
Many constitutional provisions were designed to perform several different
functions, and judges must be sensitive to the context of the case at hand in
deciding which function should guide construction. For example, it is widely
accepted that the First Amendment was designed in part to ensure that
government officials do not suppress political writings. That function is not
implicated by a ban on the sale, disclosure, and use of pharmacy records that
reveal the prescribing practices of individual doctors.166 So adopting a
construction that allows legislatures to ban commercial speech would seem to be
consistent with the spirit of the First Amendment.
But what about the function of ensuring that citizens can freely disseminate
information that is of value to them and to others, so long it is not injurious to
others? As we will discuss below, that function can be derived from the text of
the First Amendment—which does not distinguish between different instances of
“the freedom of speech” on the basis of its communicative content—as
contextually enriched by historical evidence that the then-contemporaneous
understanding of “the freedom of speech” did not distinguish between the values
of “commercial” and “political” speech. Because this textually and historically
identified function is implicated by such a ban, a “political-speech-only
construction” violates the spirit of the First Amendment.
Similarly, the Second Amendment’s prefatory clause indicates a particular
function—ensuring that the newly-created federal government would not
eliminate an institution that was deemed essential to collective self-defense
against political oppression.167 That function is not squarely implicated by
contemporary bans on the private ownership of certain kinds of commonlyowned firearms. Nonetheless, as the Supreme Court recognized in District of
Columbia v. Heller168, the “right to keep and bear arms” is ultimately rooted in a
165
See John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy
(Northwestern Public Law Research Paper No. 11-67 2011), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1959668&download=yes
166
See Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).
167
In the eighteenth century, the term “militia” did not refer to organized military units but
encompassed all of those who qualified for military service. See, e.g., VA. CONST. OF 1776 art.
I, §13 (“[A] well-regulated militia, composed of the body of the people”); 3 ELLIOT”S
DEBATES, supra note 52, at 425 (remarks of George Mason at Virginia ratifying convention
(“What are the militia? They consist now of the whole people); Letters from the Federal Farmer
(XVIII), reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 60,, at 341 (“A
militia, when properly formed, are in fact the people themselves . . . and include . . . all men
capable of bearing arms”).
168
128 S.Ct. 2783 (2008).
35
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
natural right to self-defense, both collective and individual, that is threatened by
government officials and by other private citizens who initiate violence.169
The relevant function of the Second Amendment in cases involving modern
restrictions on the private ownership of weapons is that of ensuring that lawabiding citizens can defend themselves against public or private violence.170 It is
that function that judges should apply in determining how the right to bear arms
might “reasonably” be regulated. For example, a ban on “arms” that create an
unreasonable risk of harm to innocent third parties even when responsibly used
in self-defense might well be consistent with the original function—or spirit—of
the Second Amendment, given the great variety of arms that do not create such a
risk.
In a much-disparaged171 passage of his opinion for the Court in Heller,
Justice Scalia allowed for a series of exceptions for particular weapons and
persons, such as machine guns and felons. Because he rejected the interpretationconstruction distinction, Justice Scalia thought he was identifying the historical
contours of the right itself.172 Yet, because he presented little or no historical
evidence that the original meaning of the right included such exceptions, his
assertions had the appearance of what Scalia in a heated dissent in another case
called “bald, unreasoned disclaimer[s].”173
This goes to show that wishing the interpretation-construction distinction
away does not make it so. What Justice Scalia needed to do—in a future case,
not in Heller—was to more carefully identify the spirit of the Second
Amendment to see if the exceptions that he acknowledged were consistent with
that spirit.
Correctly identifying the relevant function of a provision is not sufficient,
however. Judges must then construct a rule that resolves the case at hand in a
manner that is consistent with that function and which is susceptible of
application to future cases of a similar kind. A rule for one case only is no rule at
all. Nor is a rule that is set forth without explanation likely to equip judges to
effectuate a provision in future cases,
Once derived and sufficiently explained, however, a construction can stand
on its own. In future cases that calls for the application of a construction, judges
need only to explain why and how it applies and then apply it. The application of
such constructions—or implementing doctrines—is what we call “constitutional
169
Id. at 2790-99.
See Nelson Lund, The Second Amendment, Political Liberty, and the Right to SelfPreservation, 39 Ala. L. Rev. 103 (1987) (observing that political oppression is not “the main
reason modern civilians want to possess arms nor the main effect that private possession of arms
has on the political community” and proceeding to consider whether the underlying right to selfdefense encompasses also “the people’s right to the means of defending themselves from [private
violence].”).
171
For a thorough demolition, see Nelson Lund, The Second Amendment, Heller, and Originalist
Jurisprudence, 56 UCLA L. Rev. 1343 (2009).
172
See READING LAW, supra note 4, at 15.
173
Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).
170
36
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
law.” Of course, as preexisting doctrines meet new and unanticipated
circumstance these rules of constitutional law may have to be adjusted and
refined. That, indeed, is just how the common law of contract was developed
over centuries.174
When the evidence concerning the function of a particular provision is not
sufficiently clear for judges to identify and apply it, judges should have recourse
to the spirit of the Constitution as a whole—the function of the system. The
Constitution is not a treatise in political philosophy, but it rests upon political
values and principles that were shared by its proponents and opponents alike.175
The Constitution’s Preamble refers to several of them—effective government
(“to form a more perfect union,” “ensure domestic tranquility”), impartial
government (“establish justice” and “provide for the common defense”),
fiduciary government (“promote the general welfare”—as distinct from that of
particular individuals or groups) and the protection of individual rights that
precede government (“secure the blessings of liberty”).176
The Constitution’s overarching function is most concisely and precisely
expressed, not in the Constitution itself, but in the Declaration of
Independence.177 As officially adopted by the Continental Congress, the
Declaration sets forth the justifying purpose of government and, thus, the
standard against which all existing governments must be measured. The
Constitution, like the Declaration, refers to preexisting individual rights and
presents government as deriving its delegated powers through popular consent—
government has no inherent power.178 “We the People” are identified as the
source of all governmental authority, and “We the People,” like the “One
People” of the Declaration, are individual rights-bearers who cannot delegate
174
See generally A.W.B. SIMPSON, A HISTORY OF THE COMMON LAW OF CONTRACT
(1987). See also RANDY E. BARNETT, THE STRUCTURE OF LIBERTY: JUSTICE AND
THE RULE OF LAW 109-32 (2d ed. 2014) (identifying the evolutionary nature of the common
law decision process as a discovery mechanism).
175
See SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE DECLARATION
OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION 58-92 (2000)
(canvassing evidence from the framing and ratification debates, the Federalist Papers, the AntiFederalist Papers, and writings and speeches from leading intellectual figures during the framing
era and concluding that “there was a continuity of Lockean liberal ideals between the
revolutionary period and the constitutional period with regard to the fundamental purpose of the
state.”).
176
See ROBERT G. NATELSON, THE ORIGINAL CONSTITUTION: WHAT IT
ACTUALLY SAID AND MEANT 20-1 (2010).
177
For an account of how the Declaration’s political-philosophical premises informed the
Constitution, see TIMOTHY SANDEFUR,THE CONSCIENCE OF THE CONSTITUTION:
THE DECLARATION OF INDEPENDENCE AND THE RIGHT TO LIBERTY (2013).
178
We are describing the theory, not endorsing it. While both of us believe that the
Constitution’s legitimacy can rest upon its capacity to secure natural rights, there are
insurmountable problems with any claim that our government received its powers through
popular consent. See RESTORING THE LOST CONSTITUTION, supra note 40, at 11-32.
37
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
power that we do not possess—and none of us possesses the power to deprive
others of their rights on the basis of mere will.179
The Constitution’s legitimacy rests upon whether it can serve to secure
rights that individuals possess independently of government—the mission of
protecting individual rights both justifies and sets the bounds of governmental
authority.180 Accordingly, when all else fails, judges must have recourse to the
core principle that “first comes rights, then come government.”181
Good faith interpretation and construction thus consists in three separate
steps:
(1) Make a good-faith effort to determine the original meaning of the text of
the relevant provision and to resolve the case on the basis of the letter.
(2) Failing this, identify the spirit of the provision, and
(3) Formulate a rule that is
(a) consistent with the letter and
(b) designed to implement the function, either of
(i) the provision at issue, or, failing that,
(ii) the Constitution’s overarching function not only in the case at
hand but in future cases.
Do all this candidly and carefully, explaining why the implementing rule is
consistent with the spirit of the law, setting forth the rule clearly and concisely
and modeling its proper application.
B. Detecting Bad Faith Construction
Good faith in contract law is predominantly an objective, rather than a
subjective, inquiry. The purpose or “spirit of the contract” is ascertained
objectively. But there is a subjective element to Burton’s theory: a party is acting
in bad faith when he exercises his discretion for the purpose of recapturing an
opportunity he objectively forwent when he entered into the contract. The
problem of good-faith performance arises when the contract delegates discretion
to one of the parties, and that party exercises discretion for the purpose of
reclaiming a foregone opportunity.
Still, though the issue of bad-faith contractual performance involves the
subjective purpose of the party exercising such discretion, courts cannot read the
party’s mind. So they focus on circumstantial evidence of such purposes that are
objectively manifested. As we saw, in Ide Farm & Stable, Inc. v. Cardi, the
evidence indicated that the buyer had approached four banks in the hopes of
obtaining financing, but was refused because of a tight money market. In
179
See TIFFANY, supra note 28, at 25 (“But it is claimed that governments can lawfully enslave
their subjects. By virtue of what right, or authority can they do so? They can have no rightful
power, not delegated to them by the people: and the people can delegate to them no power which
they, as individuals, do not possess. As individuals they have no rightful power to enslave their
fellow men. Hence they can have no such right, in their governmental character.”).
180
RESTORING THE LOST CONSTITUTION, supra note 40, at 71.
181
Id. at 44.
38
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
contrast, in Fry v. George Elkins Co., although the buyer was informed at the
time of the formation of the contract that he could probably obtain such
financing from a particular mortgage company that already had a substantial loan
on the property, the buyer made no application or inquiry of the mortgage
company. Significantly, the evidence also indicated that the buyer had lost all
interest in the house and had decided to move to Hawaii.
One way to characterize bad-faith constitutional construction is as follows:
When a judge takes an oath to follow “this Constitution,” the judge (when acting
in the capacity of a judge) foregoes the opportunity to change the Constitution to
something the judge likes better. If the judge uses his or her discretion to adopt
constitutional constructions that undermine rather than consist with the spirit of
“this Constitution,” that judge is acting in bad faith, and such a constitutional
construction is to be opposed.
Lee Strang has cautioned against evaluating whether originalist
interpretation has been performed in good faith, on the grounds that subjective
inquiries into judges’ good faith can be both distracting and disruptive. 182 Such
inquiries invite scholars and litigants to “delv[e] into the nonjudicial utterances
of judges to try to show subjective bad faith,” potentially undermining and even
paving the way for the overruling of valuable rules on the basis of (unwarranted)
doubt concerning the motivations of those who formulated them.183 Further,
“intrusive search[es] into judges’ nonjudicial writings and statements” could
“discourage qualified personnel from accepting judicial office.”184 Finally, when
it comes to identifying original meaning, the motives or purposes of the judge are
irrelevant. What matters is whether he or she got the interpretation right.
Yet, while good-faith construction does involve the subjective purpose of
the judge, there is only one purpose that is forbidden: attempting to recapture the
foregone opportunity to change or amend “this Constitution.” Because good-faith
construction involves implementing the spirit of the Constitution, and because
that spirit or function of any portion of the text is a fact to be discovered not
invented, whether a judge has acted in bad faith can be assessed objectively by
examining the functions of the text the judge has identified and the evidence put
forward on their behalf. And typically a proposed construction will not be
evaluated in isolation but as compared with alternative constructions that might
comport better with the letter and spirit of the text.
So, while determining whether a judge has properly identified the spirit of
the law may seem abstract and intimidating, it should not be. As noted above, the
inquiry is empirical, and empirical inquiries can be evaluated with reference to
the rigor of the method through which evidence is collected, the presentation of
that evidence, and the persuasiveness of arguments made on the basis of that
evidence. Since most of the research that a judge will need to perform in order to
identify the spirit will already have been conducted in the course of initial
182
Lee J. Strang, An Originalist Theory of Precedent: The Privileged Place of Originalist
Precedent, 2010 BYU L. Rev. 1729 (2010).
183
Id. at 1744.
184
Id.
39
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
interpretive efforts, evaluating the identification of the spirit will not be much
different than evaluating any other originalist endeavor.
We can ask: Has the judge taken account of the text, structure, and history
of the provision? Has he explained why text, structure, and history point towards
a particular function? Has he defined that function with precision, at the proper
level of generality? If a provision serves as a number of functions and he has
concluded that one is particularly relevant to the kind of case that is now before
the court, has he explained why? If more than one is relevant, has he sought to
identify which function is of primary importance? How does the function he
claims for the text compare with others?
Evaluating the translation of the spirit into an effective rule is a more
complex matter. It will be difficult to determine whether the articulation of a rule
following a good-faith effort to ascertain the letter and a successful identification
of the spirit of a provision is itself performed in good faith. Without knowing
how a newly-minted rule will apply in future cases, we can only evaluate the
arguments that the judge has made to justify the rule and the consequences of the
application in a given case.
Has the judge given a convincing explanation of why the rule is consistent
with the spirit of the provision? Has she explained how the rule will produce
results consistent with the spirit of the provision, not just in this case, but in
future cases? Has she considered and responded to counterarguments? Is it
evident how the application of the rule in the instant case produces a result that is
consistent with the spirit?
It may be that a rule that is effective at implementing a constitution
guarantee at time A may be ineffective, counterproductive, or unmanageable at
time B. When confronted with arguments that a rule has failed in practice to
effectuate the law’s spirit, judges must be prepared to reevaluate that rule. At the
same time, a decision to preserve a rule is not necessarily an act of bad faith. We
should ask: Has the judge acknowledged any credible evidence in the record that
a rule has proven ineffective, counterproductive, or unmanageable? Has he
responded to arguments based on that evidence? Has he applied the rule in the
case at hand in a way that inspires confidence in the rule?
Good-faith construction—and the evaluation of whether construction is
being performed in good faith—cannot be reduced to a mechanical formula. The
chief virtue of Burton’s good-faith theory of contractual performance is that it
serves to focus judges’ attention on the right kind of things. Our theory of goodfaith construction does the same. If the “heaven” of determinate answers to
constitutional questions necessarily escapes judges from time to time, they need
not plunge into an “abyss” of contested normative claims that are unmoored from
the law, and citizens need not be at a loss as to whether judges are acting as
faithful fiduciaries or are betraying their trust.185
185
Martha Nussbaum, Recoiling from Reason, NY Rev of Books 36, 41 (Dec 7, 1989),
reviewing ALISDAIR MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? (1988).
40
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
IV. APPLYING GOOD-FAITH CONSTRUCTION: EXAMPLES
OF GOOD FAITH AND BAD FAITH CONSTRUCTION
Our theory of good-faith construction is designed to equip judges to
discharge their constitutional duties. But that theory is itself a constitutional
construction and it must pass its own test. It must be consistent with the spirit of
the Constitution, and it must work.
We have already laid the foundations for good-faith construction in the spirit
of Article III. The function of Article III that is relevant to constitutional
construction is that of providing access to an impartial adjudicator who will
measure assertions of government power against the law of the land. That
function has been identified with reference to the Constitution’s text, as enriched
by the relevant context. We have presented our theory of good-faith construction
as a means of discharging that function.
But does good-faith construction actually work? In this Part, we evaluate
constitutional constructions that have been put forward by the Supreme Court to
determine whether they qualify as good-faith or bad-faith constructions. In so
doing, we hope to illustrate the usefulness of our theory, critique current
doctrine, and equip others to engage in good-faith construction and evaluate
particular constructions. We will also discuss a good-faith construction that can
serve to guide adjudication in all constitutional cases arising from the
deprivation of life, liberty, or property or the disparate treatment of similarly
situated individuals—a construction that is designed to implement the spirit of
Article III.
A. From Rationality Review to the Modern Conceivable-Basis
Test
The rational-basis test is the default standard of review in constitutional
adjudication. It is applicable to all assertions of government power directed at
individuals that do not burden a right that the Supreme Court has identified as
“fundamental” or draw suspect classifications. What passes for rational-basis
review has evolved over time. The lack of continuity suggests that, for the sake
of clarity, we terminologically distinguish between traditional “rationality
review” and the modern “rational-basis test,” which is more accurately labeled as
the “conceivable-basis test.”
To see the difference, one need only compare the rationality analysis
deployed in United States v. Carolene Products186—the fourth footnote in which
laid the foundations for the framework of tiered scrutiny that is now central to
our constitutional law—with some of the Court’s more recent articulations of
rational-basis review to perceive that our constitutional default is not what it used
to be. In Carolene Products, the Court applied a standard of review that was
deferential to the government but not toothless. Justice Harlan Fiske Stone,
186
304 US 144 (1938).
41
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
writing for the Court, stated that “regulatory legislation affecting ordinary
commercial transactions” would be presumed constitutional.187
Yet Justice Stone then went on to say that “no pronouncement of a
legislature can forestall attack upon the constitutionality of the prohibition which
it enacts”188; that “the constitutionality of a statute predicated upon the existence
of a particular set of facts may be challenged by showing to the court that those
facts have ceased to exist”189; that “the constitutionality of a statute, valid on its
face, may be assailed by proof of facts tending to show that the statute as applied
to a particular article is without support in reason”190; and that “a statute would
deny due process which precluded the disproof of all facts which would show or
tend to show that a statute depriving the suitor of life, liberty or property had a
rational basis.”191
According to the New Deal Supreme Court, mere assertions concerning the
legitimacy of governmental ends were not to be taken at face value; the
government’s true ends mattered; and denying litigants the ability to demonstrate
the irrationality and therefore unconstitutionality of legislation with evidence
would itself be unconstitutional. Stone’s formulation of the rational basis test
contemplates that litigants would be able to test legislation “by proof of facts”
concerning its irrationality—legislation is not to be pronounced unconstitutional
“unless in the light of the facts made known or generally assumed it is of such a
character as to preclude the assumption that it rests upon some rational basis
within the knowledge and experience of the legislators.”192 If “facts made known
or generally assumed” precluded that assumption, legislation would be
pronounced unconstitutional.
Although we do not here claim that the Supreme Court was by this point
prepared actually to apply this rule of construction in good faith, as formulated,
this rule of construction was no rubber-stamp. In Carolene Products the Court
did consider evidence—however spurious—about the alleged essential health
benefits of milk fat that had been presented to Congress. 193 In the future, no such
evidentiary record would be required. The Court’s approach to rationality review
would change, and we can pinpoint the very case in which it did.
The case was Williamson v. Lee Optical,194 decided in 1955 and repeatedly
relied upon by the courts as the authoritative treatment of rational-basis scrutiny
and a point of distinction between rational-basis and various forms of heightened
187
Id. at 152.
Id. at 153
189
Id.
190
Id.
191
Id.
192
Id. at 152 (emphasis added).
193
Id. at 148-49 (summarizing the “extensive investigation . . . of the commerce in milk
compounds in which vegetable oils have been substituted for natural milk fat, and of the effect
upon the public health of the use of such compounds as a food substitute for milk.”).
194
348 US 483 (1955).
188
42
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
scrutiny.195 Comparing the lower court decision in Lee Optical with the Supreme
Court’s decision a year later illuminates the difference between the Carolene
Products Court’s approach to rationality review and the modern rational-basis
test.196
Lee Optical involved a challenge to a statute that, among other things,
forbade anyone but a licensed optometrist or ophthalmologist to “To fit, adjust,
adapt or to in any manner apply lenses, frames, prisms, or any other optical
appliances to the face of a person”197 or to replace any lenses without a written
prescription from an Oklahoma licensed ophthalmologist or optometrist. The
lower court dutifully stated that “all legislative enactments are accompanied by a
presumption of constitutionality” and that “[a] court can only annul legislative
action where it appears certain that the attempted exercise of police power is
arbitrary, unreasonable, or discriminatory.”198
That the challenge to the statute’s constitutionality was heard by a threejudge panel consisting of a Circuit Court Judge, the Chief Judge of the District,
and a District Court Judge is itself evidence that rationality review was to be
based on a meaningful evaluation of the record evidence and argument presented
to the court by the parties at trial, which the panel then proceeded to do. Writing
for the panel, District Judge Wallace noted that written prescriptions contain no
instructions on how to fit glasses to the face, indicating that the fitting “can
skillfully and accurately be performed” without specialized training. 199 He
highlighted the fact that the device used to “measure the power of the existing
sense and reduce[] it to prescriptive terms”—the “lensometer”—was “operated
not by the physician but by a clerk in the office.”200
On the basis of these findings and other record evidence, the court
concluded that “the means chosen by the legislature does not bear ‘real and
substantial relation’ to the end sought, that is, better vision.”201 Those means
served only to “place within the exclusive control of optometrists the power to
choose just what individual opticians will be permitted to pursue their calling.”202
The court did not directly accuse the legislature of protectionism—it did,
however, determine that the discrimination against opticians was not rationally
195
See, e.g., Powers v. Harris, 379 F. 3d 1208 (10th Cir. 2004) (following Lee Optical and
describing it as a “watershed case”); Sensational Smiles v. Mullen, 793 F.3d 281 (2nd Cir. 2015)
(following Lee Optical); Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2310 (2016)
(citing Lee Optical in contrasting the undue-burden test applicable to restrictions on abortion
access with rational-basis review).
196
See Randy E. Barnett, Judicial Engagement Through the Lens of Lee Optical, 19 Geo. Mason
L. Rev. 845 (2012).
197
Lee Optical of Okla. v. Williamson, 120 F. Supp. 128, 135 (W.D. Okla. 1954), rev’d, 348 U.S.
483 (1955).
198
Id. at 132.
199
Id. at 135.
200
Id. at 137.
201
Id.
202
Id.
43
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
justified as a health measure on the basis of “facts made known” and was
therefore unconstitutional.
The Supreme Court reversed after applying a standard of review that it is
difficult to imagine any legislation failing to satisfy. 203 Writing for the Court,
Justice William O. Douglas made plain that from henceforth legislation reviewed
under the Court’s constitutional default standard of review would be upheld if
the Court could conceive of any hypothetical reason why the legislature might
have enacted that legislation—even if that reason found no support in the record.
In the instant case, despite acknowledging that it “appears in many cases the
optician can easily supply the new frames or new lenses without reference to the
old written prescription,” Douglas speculated that the “legislature might have
concluded that the frequency of occasions when a prescription is necessary to
justify this regulation for the fitting of eyeglasses.”204
That there was no evidence in the record that the legislature had so
concluded was immaterial to Douglas’ analysis. The words “might” and “may”
are peppered throughout the opinion. The message is clear: We are no longer
concerned with evidence; we are no longer concerned with what legislation is
truly designed to accomplish, and we will help the government’s lawyers make
their case if it is not convincing enough on its own. Thus was an effectively
irrebuttable presumption of constitutionality created—and an “irrebuttable
presumption” is not truly a presumption at all.205 That is a significant change.
The standard of review—if it can be called that—applied by Justice Douglas
in Lee Optical would be carefully and precisely articulated by Justice Clarence
Thomas in an otherwise-obscure 1993 case: FCC v. Beach Communications.206
Writing for the Court, Justice Thomas stated that judges applying rational-basis
review must uphold legislation “if there is any reasonably conceivable state of
facts that could provide a rational basis for it”; that those challenging legislation
must “negative every conceivable basis which might support it”; and that the
government need not justify legislation with “evidence or empirical data.”207As
Justice John Paul Stevens ruefully observed in concurrence, this standard of
review was “tantamount to no review at all”208—it is in fact logically impossible
to prove a potentially infinite set of negatives.209
203
See Williamson v. Lee Optical of Okla., Inc., 48 US 483 (1955).
Id. at 487 (emphasis added).
205
Barnett, supra note 195, at 857. David Faigman has explained that an irrebuttable
presumption—or a “conclusive” presumption—is not a true presumption at all. It is, rather, a
“substantive rule of law.” In this case, the rule is “The government’s actions are constitutional.”
David L. Faigman, Madisonian Balancing: A Theory of Constitutional Adjudication, 88 Nw. U.
L. Rev. 658, 760 n. 24 (1994).
206
508 US 307 (1993).
207
Id. at 315.
208
Id. at 323 n. 3 (Stevens, J., concurring).
209
See ANTHONY DE JASAY, JUSTICE AND ITS SURROUNDINGS 150 (2000) (arguing
that “falsify[ing] the hypothesis that [a given act] is objectionable” is “very difficult and costly if
the set of potential objections is large, and logically impossible if the set is not finite.”). As
Timothy Sandefur has explained, drawing upon De Jasay’s insight, the requirement that people
204
44
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Of course, the story of modern rational-basis review is more complex that
what the Court says in any particular opinion in which it purports to be applying
the test. We can identify a number of cases that involve neither fundamental
rights nor suspect classifications in which the Court has taken an approach that
more closely resembles the analysis in Carolene Products than Lee Optical.210
Nonetheless, the Lee Optical approach—call it conceivable-basis review—is
routinely deployed in rational-basis cases, in particular rational-basis cases
involving burdens on the right to earn a living.211 It is arguably the dominant
mode of modern rational-basis review—thus, it merits evaluation.
There is nothing about conceivable justifications for legislation in the text of
the Constitution. That is not dispositive of whether or not conceivable-basis
review is legitimate, for reasons we have discussed above—perhaps conceivablebasis review is a good-faith constitutional construction. In order to determine
whether it is a good-faith construction, however, we need to determine whether it
is consistent with the Constitution’s letter.
Recall that the Carolene Products Court stated that it would deny due
process to allow the government to forestall constitutional challenges by simply
asserting the legitimacy of its ends or to deny litigants the ability to demonstrate
that legislation was irrational. If conceivable-basis review operates so as to do
both and thus foreclose the possibility of a successful constitutional challenge,
the Carolene Products Court’s reasoning suggests that it would violate the letter
of the Constitution.
Concerning the latter points at least, the Carolene Products Court was on
solid ground. The Constitution’s guarantees of due process of law embody a
distinctly American understanding of the “law of the land” clause in Magna
Carta, according to which (unlike in eighteenth-century England) not only the
executive branch but the legislative branch as well were prohibited from
depriving people of life, liberty, or property except pursuant to a particular kind
of legal process in which a valid law—a law consistent with the law of the
land—was applied.212 Among the components of due process of law are notice
challenging the constitutionality of a governmental restriction on their freedom negative every
conceivable basis for that restriction places them in precisely this position. See TIMOTHY
SANDEFUR, THE RIGHT TO EARN A LIVING 130 (2013).
210
See, e.g., United States v. Windsor, 133 S. Ct. 2675 (2013); Lawrence v. Texas, 539 U.S. 558
(2003); Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985); Plyler v. Doe, 457 U.S. 202 (1982); Zobel v. Williams, 457 U.S. 55 (1982);
Department of Agric. v. Moreno, 413 U.S. 528 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972).
211
See, e.g., Powers, 379 F. 3d; Sensational Smiles, 739 F. 3d; Indiana Petroleum Marketers v.
Cook, 808 F.3d 318 (7th Cir. 2015).
212
See generally Robert E. Riggs, Substantive Due Process in 1791, Wis. L. Rev. 941, 950
(1990) (finding that “in eighteenth-century America the ‘law of the land’ and “due process” were
seen as largely synonymous.”); JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF
THE AMERICAN REVOLUTION: THE AUTHORITY TO LEGISLATE 178 (U. of Wisconsin
Press, 1991 ) (“What was important about Magna Carta in the eighteenth century was not what it
said but what it had come to mean”); Frederick Mark Gedicks, An Originalist Defense of
Substantive Due Process, Magna Carta, Higher-Law Constitutionalism, and the Fifth
Amendment 596 (2009) (“deprivations of life, liberty, or property effected on the authority of
45
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
and a meaningful hearing in a court of law, before a presumptively neutral
adjudicator.213 As we will explain in a future paper, the “due process of law” is
not a free-floating guarantee of procedural fairness—it is a guarantee of
adjudication in accordance with the law of the land in a court of law by a judge
who is not precommitted to either parties’ legal position. And, among the issues
that should be fairly and impartially adjudicated, is whether a statute was within
the proper powers of a legislature to enact.
The conceivable-basis test, however, requires systematic judicial
precommitment to the government’s legal position. By requiring judges to
uphold legislation if there is any conceivably legitimate basis, even one without
foundation in record evidence, for the government’s actions, it requires judges to
tip the scales of justice decisively in favor of one party. In the words of Justice
Stone, this approach to adjudication “would deny due process” of law.
Such systematic judicial bias in favor of the government is even more
troubling than individual judicial bias because it is more certain and its
consequences more sweeping.214 If a sufficiently high possibility of individual
judicial bias stemming from pecuniary interest in an outcome is enough to
constitute a denial of due process of law—as it was at common law—the
[natural or customary rights] were not understood to comply with the ‘law’ of the land or the due
process of ‘law,’ because they were not accomplished in accordance with a true ‘law,’ regardless
of the process the acts afforded”); PHILIP HAMBURGER, IS ADMINISTRATIVE LAW
UNLAWFUL? (2014) (noting that the Constitution “recites its due process and other procedural
rights at its conclusion rather than merely in Article III, and it states them in the passive voice . . .
mak[ing] clear that these rights limit all parts of government.”). The due process of law clauses
thus require an initial judicial inquiry into the substance of enactments—not all enactments are
law in the sense required by the Constitution. See RESTORING THE LOST CONSTITUTION,
supra note 40, at 209 (explaining that “once the ‘due process of law’ is viewed as including
judicial review, as it unquestionably did, and once the Constitution is considered a law that
supersedes ordinary statutes, as it unquestionably was, the textual argument [against judicial
scrutiny of the necessity and propriety of legislation under the due process of law clauses]
evaporates.”).
213
See Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of
Procedural Due Process, 95 Yale L.J. 455, 479 (1986) (showing that impartial adjudication“was
considered a crucial element of procedural justice by the common law, by those that established
the law of the colonies, and, perhaps most important, by the framers of the United States
Constitutio.”). At common law, the principle of impartial adjudication was expressed in the
maxim, nemo iudex in sua causa (no man should be judge in his own case) and was associated
with Sir Edward Coke’s opinion in Dr. Bonham’s Case. Dr. Bonham's Case (1610) 77 Eng. Rep.
638 (C.P.) 652; 8 Co. Rep. 107a, 118a (Coke, C.J.) . For a history of the principle at common
law, see D.E.C. Yale, Iudex in Propria Causa: An Historical Excursus, 33 Camb. L.J. 80 (1974).
214
See Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1211 (2016) (arguing that
“institutionally declared and thus systematic precommitment in favor of the government” is
“more remarkable and worrisome” than individual bias); Anthony Ward, The Rational Basis Test
Violates Due Process, 8 N.Y.U. J. L. & Liberty 714, 730 (2014) (“If the mere possibility that
judges might give one side something affronts Due Process, then so does a requirement that
judges must give one side everything.”).
46
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
doctrinal guarantee of bias in all rational-basis cases certainly does.215
Conceivable-basis review therefore violates the letter of the due process of law
clauses.
Moreover, we know of no evidence that any American court expressed a
“conceivable basis” standard of review at the founding, between the founding
and the adoption of the Fourteenth Amendment, or between 1868 and 1956. And,
none of the three other dissenting justices in Lochner v. New York216 joined
Justice Oliver Wendell Holmes’ articulation of the approach that would be
enshrined in Lee Optical.217
Nor is inconsistency with due process of law the only constitutional
deficiency of conceivable-basis review. We have already discussed how Article
III’s authorization of “[t]he judicial power” incorporates a duty of independent
judgment—judgment free from will, understood as extralegal beliefs or desires.
The conceivable-basis test requires judges to assist the government in imposing
its will by acting as advocates for the government’s legal position. How else can
one characterize a requirement that judges conceive of justifications for the
government’s legal position—namely, that its actions are rationally justified by a
legitimate government interest—that have no foundation in the record?
Conceivable-basis review commands judges to abdicate their duty of
independent judgment and thus to violate the very provision from which they
draw their power.
Finally, insofar as conceivable-basis review is applied to burdens on
unenumerated rights that are not deemed “fundamental” because they are
unenumerated and ensures that burdens on those rights are reviewed less
rigorously than enumerated fundamental rights because they are enumerated,
conceivable basis-review runs afoul of the letter of the Ninth Amendment. As
one of us has shown in an exhaustive review of the relevant evidence, the Ninth
Amendment is—if it is nothing else—a textually-specified rule of construction
that forbids judges from “disparag[ing]” or “deny[ing]” natural rights to freedom
of action on the grounds that those rights are not enumerated.218
Moreover, when one moves from the letter to the spirit of the Ninth
Amendment, the impropriety of the modern rational basis test is also wanting.
Again, as one of us has explained elsewhere, the original meaning of the Ninth
Amendment implies more than what it expressly says. “In particular, it implies
215
See Tumey v. Ohio, 273 U.S. 510 (1927) (recounting the common-law history in the context
of a case involving a statute that authorized the mayor of a village to try cases involving unlawful
liquor possession and to be paid for his services if—and only if—he convicted defendants).
216
198 U.S. 45 (1905).
217
See Lochner, 198 U.S. at 76 (Holmes, J., dissenting) (emphasis added) (stating that “the word
liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome
of a dominant opinion unless it can be said that a rational and fair man necessarily would admit
that the statute proposed would infringe fundamental principles as they have been understood by
the traditions of our people and our law.” Holmes would have upheld the maximum hoursprovision at issue on the grounds that “[i]t does not need research to show that . . . [a] reasonable
man might think it a proper measure on the score of health.”).
218
See RESTORING THE LOST CONSTITUTION, supra note 40, at 237-254.
47
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
(1) that there are natural rights that are retained by the people and (2) that these
rights should not be denied or disparaged. Taken together, these two implied
propositions enjoin the denial or disparagement of natural rights, even where
such a denial is not being justified on the grounds that other rights were
enumerated.”219 Although this is not literally what the “letter” of the Ninth
Amendment says, what the Amendment does say implies to a normal speaker of
English both the existence of natural rights that are “retained by the people” and
an injunction against denying or disparaging them. And this is most clearly the
publicly-available “spirit” of the Amendment.
The modern rational-basis test operates so as to effectively deny
unenumerated rights—including unenumerated rights that the Court has
consistently held to be constitutionally protected in some form, like the right to
earn a living in the lawful occupation of one’s choice and even the right to selfpreservation.220 By adopting the rational- or conceivable-basis test as a rule of
construction, the courts have evaded the letter as well as the spirit of the Ninth
Amendment and Due Process of Law Clauses of the Fifth and Fourteenth
Amendment.
For those who question the accuracy or efficacy of the interpretationconstruction distinction, we insist that the modern rational-basis is nowhere to be
found in the content conveyed by the text of the Constitution. It is, therefore, a
rule of construction. To our mind, this alone does not render it illegitimate.
However, without examining the personal motives of the justices who adopted it,
we can nevertheless conclude that, as a rule of construction that evades both the
letter and the spirit of the Constitution, the modern rational basis test is a bad
faith constitutional construction.
B. The “Closely-Regulated” Industries Exception
The Fourth Amendment has two components, united (as we will see) by a
common function. First: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated.” Second: “[N]o warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” The first part declares the
existence of a right and absolutely proscribes violations of that right. The second
describes a judicial process that must precede the issuance of a document that
will confer authority upon government officials to do something that they would
219
Randy E. Barnett, The Misconceived Assumption About Constitutional Assumptions, 103 Nw.
U. L. Rev. 615, 623 (2009).
220
See, e.g., Powers, 379 F. 3rd (right to earn a living); Abigail Alliance For Better Access v.
Von Eschenbach, 495 F. 3d 695 (D.C. Cir. 2006) (right of terminally ill cancer patients, acting on
a physician’s advice, to procure potentially life-saving experimental medicines not yet approved
by FDA). On the right to earn a living as an acknowledged right, see Evan Bernick, Towards a
Consistent Economic Liberty Jurisprudence, 23 Geo. Mason L. Rev. 479 (2015); on the right to
self-preservation as an acknowledged right, see Nicholas Johnson, Self-Defense?, 2 J.L. Econ. &
Pol'y 187 (2006).
48
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
not otherwise be able to do without exposing themselves to civil liability and
specifies the required content of that document.221
The Supreme Court has allowed federal agencies to inspect private property
belonging to participants in certain “closely-regulated” industries, such as
alcohol, firearms, mining, or the general-junkyard industry, without a warrant. In
these settings, agencies make their own decisions to send officers onto private
property, and those decisions are treated as legally binding—one cannot disobey
them. In Colonnade Catering Corp. v. United States222 and United States v.
Biswell,223 the leading decisions establishing the closely-regulated industries
exception, the Court did not examine the Fourth Amendment’s text or the
publicly-available context in which that text was enacted. Instead, the Court
focused on strong regulatory interests and supposedly diminished expectations of
privacy attributable to long-standing regulation of particular industries.224
Does the framing of the Fourth Amendment in terms of “houses” exclude
such properties from protection? In the eighteenth century, most of the
manufacturing and commercial activity in the United States was conducted in
people’s residences or in connected buildings and thus the right to be secure in
one’s residence protected one against searches for commercial goods.225 There is
some evidence that the term “house” could encompass all sorts of enclosed
spaces226; but there is also evidence that, as today, distinctions were drawn
between houses and commercial premises.227
If indeed the evidence concerning the letter is in equipoise, we must turn to
the spirit. We can identify the spirit by seeking to determine what, exactly, was
deemed wrong with the practice that just about everyone to have studied the
221
See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 778
(1994) (while eighteenth-century common law allowed civil suits against officers for
unreasonable intrusions, warrants “barred a target from suing after the fact”); Laura K. Donohue,
The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age 75-97 (2016)
(describing the relationship between the general warrants requirement and the unreasonableness
of a search or seizure).
222
397 U.S. 72 (1970).
223
406 U.S. 311 (1971).
224
See Colonnade, 397 at 76 (“Congress has broad power to design such powers of inspection
under the liquor laws as it deems necessary to meet the evils at hand.”); Biswell, 406 at 316
(“When a [gun] dealer chooses to engage in this pervasively regulated business and to accept a
federal license, he does so with the knowledge that his business records, firearms, and
ammunition will be subject to effective inspection.”).
225
See IS ADMINISTRATIVE LAW UNLAWFUL?, supra note 209, at 269 (“When business
was not done in the main house, it often was done in a connected building, whether a backhouse,
shed, or barn, all of which (if connected) were part of the house.”).
226
Id. at 270 n. 63. (noting an 1845 Pennsylvania supreme court decision which held that a
warrant was necessary for entry into a ‘house, store, cellar, or other enclosure,’ but not a “vacant
lot.” See Kennedy v. Board of Health, 2 Pa. 366 (Pa. Supr. Ct. 1845)).
227
See John Dickinson, Letters from a Farmer in Pennsylvania to the Inhabitants of the British
Colonies (1768), reprinted in TRACTS OF THE AMERICAN REVOLUTION: 1763-1776, at
127, 150-151 (Merrill Jensen ed., 1967) (complaining that the writs of assistance enabled
“officers of the customs . . . enter any HOUSE, warehouse, shop, cellar, or other place”).
49
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
issue agrees that the Fourth Amendment was designed to do away with—the
issuing of general warrants, that is, blanket authorizations that allowed British
authorities to search for and seize contraband wherever and whenever they might
choose.228
Consider James Otis’s famous argument in opposition to the reauthorization
(following the death of King George II) of the much-despised writs of assistance
that authorized custom officers to search for goods that had been imported into
the colonies in violation of England’s tax laws. According to Otis, the essential
vice of general warrants was that they placed “the liberty of every man in the
hands of every petty officer.”229 The writs, Otis explained, were issued “on bare
suspicion without oath,” that is, without any prior judicial review of findings of
fact.230 They “live[d] forever,” being unconnected to any specific cause.231
Finally, they allowed writ-holders “when they please[d]” to search for
“uncustomed goods” and “no court c[ould] inquire” as to whether they did so
“through malice or revenge,” as warrants shielded officials from liability that
they would otherwise face.232 Before, during, and after intrusions upon not only
residences but shops, cellars, and warehouses, colonists could do nothing.233
Along with other voluminous evidence,234 Otis’s arguments trenchantly
express the publicly-known spirit of the Fourth Amendment. The Fourth
Amendment was and is directed against the evil of unbounded governmental
discretion to search and seize—an evil crystallized in general warrants—through
its requirements of prior judicial review and an evidentiary determination prior to
the issuance of warrants and of individuality and particularity in the content of
warrants. This is not an evil that confined in its scope to intrusions upon
228
Scholars with strong substantive disagreements concerning the meaning of the Fourth
Amendment agree on this much. See, e.g., Akhil Reed Amar, Terry and Fourth Amendment First
Principles, 72 ST. JOHN'S L. REV. 1097, 1116 (1998); Thomas Y. Davies, Recovering the
Original Fourth Amendment, 98 MICH. L. REV. 547, 619, 650, 655-60 (1999); Tracey Maclin,
When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S. CAL. L. REV. 1, 910 (1994); Donohue, supra note XX.
229
See James Otis, Against the Writs of Assistance (1761), reprinted in M.H. SMITH, THE
WRITS OF ASSISTANCE CASE 548-55 (1978).
230
Id. See Morgan Cloud, Searching Through History; Searching for History, 63 U. Chi. L. Rev.
1707, 1712-13 (1996) (“An important mechanism for eliminating general warrants was
meaningful judicial review of the reasons for and the scope of intrusions . . . the Fourth
Amendment ensures that judges will issue warrants only upon a showing of good cause for the
intrusion”).
231
THE WRITS OF ASSISTANCE CASE, supra note 224.
232
Amar, supra note 217, at 778.
233
See NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION 54 (Leonard W. Levy ed., Da
Capo Press 1970) (1937) (“The discretion delegated to the official was . . . practically absolute
and unlimited.”).
234
See Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181 (2016)
(examining the arguments animating the Founders prohibition of general warrants).
50
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
residences, any more than general warrants were confined in their scope to
intrusions upon residences.235
A construction of the Fourth Amendment that allows federal officers acting
at the behest of executive agencies to search commercial premises without need
of an individualized and particularized warrant issued upon probable cause by a
judge exposes property owners to the kind of executive discretion that the Fourth
Amendment was designed to eliminate. Allowing warrantless inspections of
property belonging to participants in closely regulated industries thus contradicts
the spirit, even if does not contradict the letter, of the Fourth Amendment. We
applaud the Supreme Court’s decision in Patel v. City of Los Angeles236 for
rejecting a call to expand the “heavily regulated industries” exception to
encompass hotels—we hope that in the future the Court will repudiate the
exception entirely.
C. Strict Scrutiny for Content-Based Speech Restrictions
The First Amendment’s Speech and Press Clauses do not distinguish the
kinds of activities they protect on the basis of communicative content. If a
particular activity falls within the scope of “the freedom of speech, or of the
press,” the First Amendment provides that it “shall not [be] abridge[d].”
Legislation that singles out particular kinds of content for burdens thus seems
disconcerting, to say the least.
On the other hand, nothing in the text of the First Amendment expressly
instructs judges to be especially vigilant when protected speech it is singled out
on the basis of its subject matter. The text of the First Amendment does not
provide—and, so far as we are aware, nothing in the publicly-available context in
which it was enacted even suggests—that the government must bear the burdens
of production and persuasion when it singles out speech on the basis of its
communicative content; that it must show that it has chosen the least restrictive
means to further its ends, even if those ends are constitutionally proper; that such
an allocation of burdens is triggered if the government’s true ends, as assessed in
light of the relevant evidence, are to target a particular subject matter, even if
legislation does not facially identify speech on the basis of its communicative
content. And yet the Supreme Court has for decades held—and recently made
crystal-clear—that “strict scrutiny” is triggered whenever the government either
235
See Fabio Arcila, Jr., A Response to Professor Steinberg's Fourth Amendment Chutzpah, 10
U. Pa. J. Const. L. 1229, 1245 (noting that the Townshend Act of 1767, which was designed to
resolve any doubt about the writs’ legality in the colonies and prompted furious colonial
opposition, “would be used principally to search commercial interests,” including “colonial ships,
cargo, and dockside warehouses.”).
236
135 S.Ct. 2443 (2015).
51
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
facially or by design targets otherwise-protected speech on the basis of its
content.237
The Court’s specific focus on content-based restrictions on speech first
became pronounced in Police Dept. of Chicago v. Mosley,238 a case in which the
Court invalidated a local ordinance that prohibited all picketing, except labor
picketing, near a school. In Mosley, the presumptive illegitimacy of contentbased speech distinctions was presented as a synthesis of a number of decisions
involving constitutionally protected—if provocative—speech.239 These decisions
were taken to stand for the proposition that “government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.”240
Why? Wrote Justice Thurgood Marshall for the Court, “[t]o permit the continued
building of our politics and culture, and to assure self-fulfillment for each
individual, our people are guaranteed the right to express any thought, free from
government censorship.”241
Justice Marshall was not an originalist, and Mosley is not an originalist
opinion. But we can still assess the Court’s construction with reference to the
Constitution’s letter and its spirit. We have noted that the First Amendment does
not classify the speech it protects on the basis of its content. We can understand
why the First Amendment was designed in this way by exploring the particular
concern with prior restraints—licensing laws that required individuals to seek
permission from the government before speaking or publishing their thoughts—
in Founding-era thought.
The seventeenth-century English licensing laws denounced by John Locke
and John Milton and regarded during the Founding era as paradigmatic examples
of censorship were not solely focused on political speech. Licensing laws in
Britain were first largely theological in focus; they later became more general
and came to require permission for all kinds of printing, whether poetic,
academic, scientific, theological or political.242
In England as elsewhere, licensing laws were responses to the invention of
printing, which threatened to upend traditional hierarchies of knowledge in a
number of fields—they were designed to enable ruling authorities to control the
control of the dissemination of ideas and thus access to knowledge.243 The most
237
See Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (clarifying that strict scrutiny is
triggered when a speech restriction is either content based on its face or if its purpose and
justification are content based—and courts must inquire into each question).
238
408 US 92 (1972).
239
Among them: Cohen v. California, 403 US 15 (1971); New York Times v. Sullivan 376 US
254 (1964); Terminiello v. Chicago, 337 US 1 (1949).
240
Mosley, 408 US at 95.
241
Id. at 95-6.
242
See Michael I. Meyerson, The Neglected History of the Prior Restraint Doctrine:
Rediscovering the Link between the First Amendment and the Separation of Powers, 34 Ind. L.
Rev. 295, 298-311 (2001) (recounting the history of licensing in England).
243
See id. at 298 (“Printing posed a new danger to the established regimes. Communication was
suddenly possible with many more people. Also, because the words remained permanently
affixed, rather than vanishing instantaneously, they served as a perpetual source of incitement.”);
52
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
prominent and enduring arguments against licensing thus did not focus on
particular kinds of speech but, rather, upon the value of pursuing, obtaining, and
spreading knowledge of all kinds and how licensing deprived people of that
value.244
The English licensing system would lapse in 1695—as Lord Macauley
derisively observed, more as a consequence of its unwieldy nature than any
“great question of principle.”245 But during the eighteenth century, freedom of
speech and the press came to be understood and defended as fundamental
principles. Thus, Blackstone praised “the liberty of the press” (which he
understood as being limited to freedom from prior restraints) as “essential to the
nature of a free state” and asserted that individuals have “an undoubted right to
lay what sentiments [they] please[] before the public,” albeit at the risk of
subsequent punishment if that speech proved injurious to others.246
Americans grasped, embraced, and refined those principles, the implications
of which were found to be strikingly broad. Thus, the Continental Congress
stated in a letter written by John Dickinson that press freedom promoted “truth,
science, morality, and arts in general” as well as “liberal sentiments on the
administration of Government.”247 The result was the text of the First
Amendment, which draws no content-based distinctions. If it is within “the
freedom of speech, or of the press,” then it “shall not be abridged.”
Understanding why prior restraints were deemed so odious helps us to
identify the First Amendment’s spirit and appreciate why Court-fashioned
doctrines related to content-based speech restrictions are consistent with that
spirit. It is because freedom of speech and the press were understood to
encompass freedom to speak and publish their thoughts about any subject that
licensing laws that covered every subject were hated. It was because licensing is
such a potent means of suppressing the pursuit and dissemination of knowledge
and thereby controlling thought that requiring people to seek permission to speak
and publish their thoughts was perceived to be particularly threatening.
Thomas I. Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648, 650
(1955) (printing “opened vast possibilities for the communication of ideas in all fields of thought
and action,” and thus “[p]revailing doctrines of spiritual and temporal sovereignty” dictated that
control “should be gathered firmly in the hands of the ruling authorities.”).
244
Thus, Milton contended that licensing laws resulted in the eternal loss of ideas: “[W]ho kills a
Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it
selfe, kills the Image of God, as it were in the eye[,] . . . slaies an immortality rather then a life.”
John Milton, Areopagitica in AREOPAGITICA AND OTHER POLITICAL READINGS OF
JOHN MILTON 9 (Liberty Fund, 1999).
245
5 THOMAS B. MACAULAY, THE HISTORY OF ENGLAND 13 (1879) (“The Licensing
Act is condemned, not as a thing essentially evil, but on account of the petty grievances, the
exactions, the jobs, the commercial restrictions, the domiciliary visits, which were incidental to
it.”)
246
William Blackstone, 4 Commentaries on the Laws of England 13 (1769), reprinted in 5 THE
FOUNDERS’ CONSTITUTION 119 (P. Kurland & R. Lerner ed., Liberty Fund 2000).
247
Letter to the Inhabitants of the Province of Quebec, CONT’L JOURNAL, 1st Cong., 108
(1774).
53
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Content-based speech restrictions of otherwise protected or “rightful”
speech—speech that is not, for example, “wrongful” because defamatory,
fraudulent, threatening, or an incitement to criminal action248—draw distinctions
that the First Amendment itself does not and suggest either a cramped conception
of freedom of speech or a deliberate effort to control thought about particular
subjects.249 The Court’s treatment of content-based speech restrictions as
presumptively illegitimate and its application of the most demanding judicial
scrutiny to such restrictions is thus consistent with the First Amendment’s
spirit.250
D. Judicial Engagement
At first blush, the letter of the Constitution does not seem to specify any
degree of judicial deference—or lack thereof—in constitutional cases. It does not
expressly provide that either individuals challenging the government’s actions—
or the government—must bear the burden of producing evidence sufficient to
prove a fact. It does not provide that either individuals challenging the
government’s actions—or the government—must bear the burden of persuading
the court concerning the lawfulness or unlawfulness of the government’s actions,
and thus the risk of non-persuasion on the merits. If in fact the letter of the
Constitution does not specify a degree of deference, it would follow that any
allocations of the burdens of production and proof would have to be
constitutional constructions.
Not so fast. In an important article, John McGinnis presents evidence that
the letter of the Constitution—specifically, Article III’s authorization of “[t]he
judicial power”—incorporates a judicial “duty of clarity” which requires judges
to presume the constitutionality of government enactments.251 McGinnis argues
Any distinction between “rightful” and “wrongful” speech, of course, requires its own
justification, which we think is implicit in the very concept of a natural right that is “bounded” by
the natural rights of others. As one of us has explained elsewhere, it is reflected in the distinction
between “liberty” and “license.” See Barnett, The Structure of Liberty, supra note 174, at 1-25,
52.
249
Concern about the imposition of ideological preferences permeates decisions concerning
content-based speech restrictions. See, e.g., Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105, 116 (1991) (reaffirming that content-based burdens “raise[] the
specter that the Government may effectively drive certain ideas or viewpoints from the
marketplace”); Cohen v. California, 403 U.S. 15, 21 (1971) (stating that allowing government to
silence “offensive” speech in public would “effectively empower a majority to silence dissidents
simply as a matter of personal predilections”); Reed, 135 S.Ct. at 2229 (quoting Hill v. Colorado,
530 U.S. 703, 743 (2000) (Scalia, J., dissenting) (“The vice of content-based legislation . . . is
not that it is always used for invidious, thought-control purposes, but that it lends itself to use for
those purposes.”)).
250
We note that there are strong arguments for invalidating any content-based legislation that
burdens constitutionally protected speech. Such a per se rule would also, however, be a
constitutional construction. See Eugene Volokh, Freedom of Speech, Permissible Tailoring and
Transcending Strict Scrutiny, 144 U. Penn. L. Rev. 2417 (1997).
251
John O. McGinnis, The Duty of Clarity, 84 The George Washington Law Review 843 (2016).
248
54
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
that this duty requires judges to use interpretive methods that the Constitution’s
enactors would have considered applicable to it to clarify the meaning of the
relevant constitutional provisions and only invalidate challenged government
actions if those actions clearly violate the Constitution’s meaning. 252 Thus,
constitutional challengers must shoulder the burden of persuasion on the merits.
If McGinnis’ claims are accurate, not only does the letter of the Constitution
command a particular degree of deference but judges have no business entering
the construction zone at all because they “can set aside the constitutional
judgments of the other branches only when they conflict with a meaning of the
Constitution which the judiciary finds to be clear.”253 If McGinnis is correct,
there is “no room for constitutional construction in the course of judicial
review.254
We agree with McGinnis that “[t]he question of whether we should
understand the requirement of clarity as part of judicial duty or simply a judicial
backdrop is to inquire into what are the necessary and what are the incidental
aspects of judicial duty and thus judicial power—those that are part of the
framers’ core concept and those that are contingent to its application.”255 We do
not believe, however, that the evidence he adduces is sufficient to establish that
the requirement of clarity is communicated by the words “[t]he judicial power.”
McGinnis contends that the phrase “[t]he judicial power” was a legal term
of art “that itself included a notion of deference, when judges exercised that
power in accordance with their duty to apply the higher law.”256 Writes
McGinnis, “any term in the Constitution has to be understood according to its
legal context, and the legal context can be established by publicly available
material in the legal community, even if that context was not known by members
of the general public.”257
With respect to what are called “terms of art,” we agree. Terms of art
depend upon a division of linguistic labor. If “the judicial power” were indeed a
term of art like, say, “letters of marque and reprisal,” ordinary citizens would
recognize what appears to be technical legal language and defer to the
understanding of the term shared by those learned in the law.258 Laypeople
confused about the meaning of “the judicial power” would ask lawyers, and—on
McGinnis’ account—they would be told, among other things, that those who
exercised the judicial power would be duty-bound to defer to assertions of power
by the other branches that did not clearly violate the Constitution.
252
Id. at 850.
Id. at 918.
254
Id. at 917. McGinnis and Michael Rappaport have long rejected the interpretationconstruction distinction. See generally McGinnis & Rappaport, supra note 9.
255
McGinnis, supra note 245, at 862.
256
Id. at 858 n. 56.
257
Id.
258
See Lawrence B. Solum, Originalism and the Natural-Born Citizen Clause, 107 Mich. L.
Rev. First Impressions 22, 25 (2008) (explaining the division of linguistic labor).
253
55
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Importantly, the linguistic division of labor upon which terms of art depend
does not work if the relevant learned group does not share an understanding of a
given term; and terms of art do not incorporate ideas that members of the
relevant learned group would not associate with those terms.259 Thus, the
challenge before McGinnis is not simply to establish that eighteenth-century
lawyers would have agreed that judges were required—duty-bound, even—to
uphold government enactments unless they were clearly unconstitutional but also
that they would have taken a particular term—“the judicial power”—to have
included that requirement.
McGinnis has amassed considerable evidence concerning the presence of a
requirement of clarity in Founding-era jurisprudence. He has provided very little
evidence that the term “the judicial power” would have been understood by those
learned in eighteenth-century law to express or communicate such a requirement.
Scrutinizing the evidence that McGinnis draws upon, we find the key
phrase—“the judicial power”—used exactly twice. Oliver Ellsworth used it at
the Connecticut Ratifying Convention and James Iredell used it in a letter to
Richard Dobbs Spaight in the wake of the North Carolina Supreme Court’s
decision to invalidate an unconstitutional statute in the 1787 case of Bayard v.
Singleton.260
Ellsworth said only that “[i]f the United States go beyond their powers, if
they make a law which the Constitution does not authorize, it is void; and the
judicial power, the national judges, who to secure their impartiality, are to be
made independent, will declare it to be void.”261 He does not discuss the level of
certainty that must obtain before judges should declare laws to be void, so one of
McGinnis’s two examples does not support his conclusion.
Iredell in his letter to Spaight—who denied that judges had the power to set
aside legislation under any conditions—stated that “[t]he Constitution, therefore,
being a fundamental law, and a law in writing of the solemn nature . . . the
judicial power . . . must take notice of it as the groundwork of that as well as of
all other authority.”262 Iredell went on to concede that “[i]n all doubtful cases, to
be sure, the Act ought to be supported: it should be unconstitutional beyond
dispute before it is pronounced such.”263
What are we to make of Iredell’s concession? Earlier in the letter, Iredell
defended the duty to set aside unconstitutional legislation on grounds of the
nature of judicial power and grounds of popular sovereignty. Speaking of judges,
Iredell argued that “when an act is necessarily brought in judgment before them,
259
Id.
1 N.C. (Mart.) 42, 43 (1787).
261
Oliver Ellsworth, Speech in the Connecticut Ratifying Convention (Jan. 7, 1788), in 2
ELLIOT’S DEBATES, supra note 52, at 196 (emphasis added).
262
Letter from James Iredell to Richard Dobbs Spaight (Aug. 26, 1787), in 2 LIFE AND
CORRESPONDENCE OF JAMES IREDELL 172, 173 (Griffith J. McRee ed., 1857)
[hereinafter IREDELL].
263
Id. at 175.
260
56
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
and must, unavoidably, determine one way or another,” it would be incoherent
for them enforce legislation “to which . . . the people owe no obedience.”264
As Gerald Leonard observes,265 Iredell’s later concession was in tension
with “the principles of separation of powers and popular sovereignty that had
driven his argument for judicial review in the first place.”266 Thus, Leonard
characterizes it as a “practical concession to win over an opponent.”267
Further, McGinnis acknowledges that the letter “was not published in
Iredell’s lifetime and certainly did not influence the Constitution directly.”268
Contrast this with Iredell’s open letter to the public on August 17, 1786, in which
he urged the North Carolina Superior Court to invalidate the statute at issue in
Bayard on constitutional grounds. This letter, which prompted his private
exchange with Spaight, appeared in the North Carolina Gazette and has been
identified as one of the most influential writings on the judicial power during the
period.269 In his open public letter, Iredell discussed “the judicial power” and
explained that the “the duty of that power” is to “decide according to the laws of
the State,” including the “superior law” of the state’s constitution.270
Thus, we have the “duty” to displace legislation associated with “the judicial
power” but not with any displacement standard. The omission does not suggest
that Iredell did not believe in a clarity requirement, only that he did not publicly
communicate that belief in a manner that would have helped to create an
association between such a requirement and “[t]he judicial power.” In making
an empirical claim about public meaning, McGinnis’s evidence is simply too thin
to support a conclusion that the public meaning of “[t]he judicial power” was
thick enough to include a clarity requirement.
We would be remiss if we did not address Federalist 78, Alexander
Hamilton’s seminal essay on the judiciary. Hamilton, as McGinnis notes, clearly
contemplated that judges would apply a rebuttable presumption of
constitutionality. Thus, Hamilton stated that constitutional limits can “be
preserved in practice no other way than through the medium of courts of justice,
whose duty it must be to declare all acts contrary to the manifest tenor of the
Constitution void” and explained that “[i]f there should happen to be an
irreconcilable variance between [the will of the people’s agents in the legislature
264
Id. at 171.
Gerald Leonard, Iredell Reclaimed: Farewell to Snowiss’s History of Judicial Review, 81
Chi.-Kent. L. Rev. 86, 880 (2006).
266
Id. at 881.
267
Id.
268
McGinnis, supra note 245, at 885.
269
Letter from “An Elector” to “the Public” (Aug. 4, 1786), reprinted in IREDELL, supra note
256, at 169. See SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE
CONSTITUTION 46 (1990) (describing Alexander Hamilton and James Wilson’s defenses of
judicial review as “restatements of Iredell’s argument[s]”); Leonard, supra note 259, at 871 n. 21
(Iredell’s essay “generally thought foundational”).
270
IREDELL, supra note 255, at 169.
265
57
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
and the will of the people expressed in the Constitution], that which has the
superior obligation and validity ought, of course, to be preferred.”271
Hamilton therefore implied that judges ought not declare acts that are not
contrary to the “manifest tenor of the Constitution” void and that variances
between the “supreme law of the land” and subordinate enactments that can be
reconciled through trusted interpretive techniques should be so reconciled.
McGinnis regards Federalist 78 as an “example[] of the manner in which the
obligation of clarity is intertwined with the defense of judicial review” and offers
it as evidence that the requirement of clarity was a not a “contingent aspect of the
judicial review that could be eliminated.”272 According to McGinnis, Hamilton
was concerned to address Anti-Federalist fears about arbitrary judicial power and
the discussion of the clarity requirement was intended to address those
concerns.273
In context, however, Hamilton’s references to a presumption of
constitutionality in Federalist 78 are not properly understood as part of a
response to Anti-Federalist concerns about arbitrary judicial power. The AntiFederalists were indeed concerned about “arbitrary discretion in the courts”—
thus, the Anti-Federalist writer “Brutus” warned that the judicial power vested in
the federal courts “will enable them to mould the government, into any shape
they please”—and Hamilton did seek to address those concerns.274 In Federalist
78, however, he did so only by referring to “strict rules and precedents, which
serve to define and point out their duty in every particular case that comes before
them.”275 The requirement of clarity is referenced earlier in the essay.
It is in Federalist 81 that Hamilton addressed Anti-Federalist concerns about
arbitrary judicial power most directly. In Federalist 81, Hamilton emphasized the
limited “objects” of the “judicial power,” its “comparative weakness” and “total
incapacity to support its usurpation by force,” and pointed to the availability of
impeachment as a remedy for judicial betrayal of the public’s trust—a remedy
which he described as being “alone a complete security.”276 Crucially, we think,
Hamilton did not here mention a requirement of clarity.
Thus, the requirement of clarity in Federalist 78 formed no substantial part
of Hamilton’s defense of judicial review, such that those wary of judicial power
could justly complain if the requirement of clarity was later eliminated. This is
unsurprising when one considers that Anti-Federalists were not primarily
concerned that federal judges would be too hasty to invalidate legislation—they
feared federal judges would “mould the government” by being more deferential
to assertions of federal power than state judges were to assertions of state power
and that they would draw upon the Constitution’s more abstract clauses to
271
THE FEDERALIST No. 78 (Hamilton), supra note 3, at 403-4 (emphasis added).
McGinnis, supra note 245, at 879.
273
Id.
274
“Brutus” XI, N.Y. J., Jan. 31, 1788, reprinted in 2 DEBATE ON THE
CONSTITUTION 135 (Bernard Bailyn, ed., 1993).
275
THE FEDERALIST No. 78 (Hamilton), supra note 3, at 407.
276
THE FEDERALIST No. 81 (Hamilton), supra note 3, at 420.
272
58
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
expand federal power. (As such, in this matter as in others, the Anti-Federalists
proved prescient.)
Consider Patrick Henry’s comments about the federal judiciary at the North
Carolina ratifying convention:
The honorable gentleman did our judiciary honor in saying that they had
firmness to counteract the legislature in some cases. Yes, sir, our judges
opposed the acts of the legislature. We have this landmark to guide us.
They had fortitude to declare that they were the judiciary, and would
oppose unconstitutional acts. Are you sure that your federal judiciary
will act thus? Is that judiciary as well constructed, and as independent of
the other branches, as our state judiciary? Where are your landmarks in
this government? I will be bold to say you cannot find any in it. I take it
as the highest encomium on this country, that the acts of the legislature,
if unconstitutional, are liable to be opposed by the judiciary.277
All of this is not to say that people learned in eighteenth-century law would
not have recognized a clarity requirement. But McGinnis’ argument that such a
requirement is as much a part of the communicative content of the “[t]he judicial
power” as the duty of judicial review itself fails to convince. As Ellsworth and
Iredell’s interpretations above suggest—and as one of us has undertaken to
demonstrate at greater length in a previous article—there is compelling evidence
that “[t]he judicial power” was understood to incorporate a duty to hold
unconstitutional laws void.278 But the text of Article III, even enriched by the
evidence adduced by McGinnis, does not seem to yield any positioning of
presumptions, whether of constitutionality or of liberty.
To establish that the words “[t]he judicial power” had the precise
significance to those learned in the law that McGinnis attributes to it require
much more evidence than he has provided to date. Alternatively, the case that
these words would have been understood by ordinary citizens to incorporate a
requirement of clarity without the aid of those learned in the law has yet to be
made—and it is difficult to imagine how it could be made.
However, by following the spirit of Article III, we can arrive at a
constitutional construction that that can serve as a general framework for
constitutional adjudication. We have already explained that the primary function
of our independent judiciary is to ensure that government power is measured
against the law of the land. We submit that the judicial approach best calculated
to fulfill this function is judicial engagement—a term recently-coined to avoid
the extremes of “judicial activism” and “judicial restraint” (itself a post-New
Deal terminological distinction).
Judicial engagement consists in an evidence-based inquiry into whether the
government is pursuing a constitutionally proper end through constitutionally
277
2 ELLIOT’S DEBATES, supra note 52, at 196.
See Randy E. Barnett, The Original Meaning of the Judicial Power, 12 SUP. CT. ECON.
REV. 120 (2004).
278
59
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
authorized means.279 It provides that, once a party has made a threshold showing
that he or she stands to be deprived of his or her life, liberty, or property or is
being treated differently by the government than someone else who is similarly
situated as a consequence of what he or she claims to be an unconstitutional
action, the government should be made to offer a reason for its actions and to
bear the burden of producing evidence in support of its actions. Judges should
then seek impartially to determine whether the government has demonstrated that
its actions are calculated to achieve a constitutionally proper end or ends, without
deference to the government’s unsupported factual assertions or its litigation
stance—that is, without deference to the mere will of the government.
Requiring the government to offer a reason for its actions, and to bear the
burden of producing evidence that its actions are calculated to achieve a
constitutionally proper end, comports with the function of Article III: measuring
government power against the law of the land. Litigants are not well-equipped to
produce evidence concerning the government’s true ends or to explain the
government’s actions. Government officials are in possession of that evidence
and can be presumed to know what the legislation that they voted into law was
designed to achieve.280 Placing the burden of production on the government is
likely to produce more evidence than would otherwise be available and thus
allow judges to better measure a particular act of power against the law of the
land.
We know that such engagement is possible because already takes place in
many contexts. That which exists is possible to exist. We find the hallmarks of
judicial engagement in cases involving heightened scrutiny and even some cases
that are nominally rational-basis cases. What has been missing to date is
precision in identifying the constitutionally proper ends of government and
consistency in evaluating regulations. Although “compelling interests,”
“important interests,” and “legitimate interests” have been identified, no criteria
have been established for separating compelling from less-than-compelling,
important from unimportant, or legitimate from illegitimate.281
279
For a comprehensive presentation and defense of judicial engagement, see CLARK M.
NEILY III, TERMS OF ENGAGEMENT: HOW OUR COURTS SHOULD ENFORCE THE
CONSTITUTION’S PROMISE OF LIMITED GOVERNMENT (2013).
280
See id. at 143 (“In all constitutional cases, the government is in possession of the relevant
information—namely, why it is enforcing a given law or policy—and therefore the burden of
producing that information should be on the government in all cases”). See also Sikes v. Teleline,
Inc., 281 F.3d 1350, 1362 (11th Cir. 2002) (explaining that “[a] presumption is generally
employed to benefit a party who does not have control of the evidence on an issue” and that it
would therefore be “unjust to employ a presumption to relieve a party of its burden of production
when that party has all the evidence regarding that element of the claim”).
281
See Richard H. Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1322 (2007) (Court
has taken an “astonishingly casual approach to identifying compelling interests”); Ashutosh
Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment
Jurisprudence, U. Ill. L. Rev. 783 (2007) (intermediate scrutiny has “collapsed over time into
undifferentiated balancing,” owing to the “vacuity of the intermediate scrutiny formulations”);
Nollan v. California Coastal Comm'n, 483 US 82, 834 (1987) (“Our cases have not elaborated on
the standards for determining what constitutes a "legitimate state interest”).
60
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
What are the constitutionally proper ends of government? How can judges
determine whether they are looking at a valid law or a “mere act of power”?282 In
the case of the federal government, while the ultimate ends are stated in the
Preamble—although, again, we think the Declaration serves as a more precise
articulation of those ends—Article I, Section 8 specifies the particular powers or
proper “objects” of national legislation. The powers of the federal government
are “few and defined” and are drawn from express textual grants in the
Constitution—including the Amendments that expressly authorize Congressional
action.283
In the abstract, identifying the proper end of state governments is also easy.
The proper end of all governments—state no less than national—was identified
in the Declaration as being “to secure these rights” retained by the people when
forming government.284 But, in the absence of an express enumeration of more
particular powers or objects, identifying the precise contours of the states’
reserved “police” powers to regulate and govern activity within their borders is
more complex.285
This is a subject we intend to address at greater length in a future article
presenting a good-faith construction of “the due process of law.” But, as we will
explain, the concept of good-faith performance narrows the scope of the inquiry
considerably. For whatever may be the proper scope of the police power of
states, “the due process of law” requires that such power be expressly asserted by
the state, and the means chosen be shown to be neither irrational nor arbitrary
with respect to these ends. That state government may justly protect the health
and safety of the public is generally acknowledged, and that it may also regulate
the morality of conduct in the public sphere—like the parks and streets—is also
generally conceded.
Whether this police power extends also to regulating the morality of conduct
in private is more contested, but the rationale or object of the great
preponderance of state legislation falls under the heading of health and safety.
Whenever such is the proffered rationale of a state law, before a person may be
deprived of his “life, liberty or property” by the enforcement of such a law, he or
she is entitled to contest whether the law is “irrational or arbitrary” with respect
to these ends.
282
Fletcher v. Peck, 10 US 87, 133 (1810).
THE FEDERALIST No. 45 (Madison), supra note 3, at 241.
284
DECLARATION OF INDEPENDENCE. See also THE FEDERALIST No. 22 (Hamilton),
supra note 3, at 112 (describing the “consent of the people” as “that pure original fountain of all
legitimate authority”); THE FEDERALIST No. 46 (Madison), supra note 3, at 243 (affirming
that “federal and State governments are in fact but different agents and trustees of the people”);
CREATION OF THE AMERICAN REPUBLIC, supra note 82, at 531 (quoting James Wilson as
describing the powers of federal and state governments as “so many emanations of power from
the people.”).
285
What follows is a preliminary sketch of a construction of the police powers that we will
define and defend at greater length in a forthcoming article as a good-faith construction of the
due process of law.
283
61
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
It has never been authoritatively denied that state laws that irrationally or
arbitrarily restrict the exercise of individual rights—to say nothing of preventing
people from exercising them entirely—are beyond the reserved powers of state
governments. The modern “rational basis test” is the homage that judicial vice
pays to political virtue. Judicial engagement merely acknowledges the “judicial
power” of judges to ensure that our fiduciaries act consistently with the purposes
for which they have been entrusted with discretionary power to ensure that they
are exercising their discretion in good faith—for the protection of individual
rights and the promotion of the genuine public good rather than for the
“accomplishment of objects not intrusted to the government.”286
V. OBJECTIONS TO GOOD-FAITH CONSTRUCTION
Good-faith construction seeks to meet a well-recognized need to guide
judges in discharging their duty and to provide members of the public with
assurance that they will not be exposed to arbitrary judicial power. That is to say,
it aspires to do for constitutional construction what Burton’s “foregone
opportunities” theory did for the duty of good-faith performance in contract law.
Whether it does so will ultimately turn on whether it is embraced and applied in
way that inspires confidence that it is capable of delivering on its promises. But
we must address some potential objections to judges adopting it in the first place.
A. Not Originalist
Some may object that good-faith construction, like all construction, is not
originalist. Because of this, it might be said to open the door wide to “living
constitutionalism” with all its faults. If originalism is defined as a method of
interpretation—that is, determining the communicative content of the text or
letter of the Constitution—then this is correct. By definition, any theory of
construction is “nonoriginalist,” which for some is cause to object to the
interpretation-construction distinction itself.
Yet, if one takes a more capacious view of originalism than we do—as
critics of the interpretation-construction must implicitly be doing—good-faith
constitutional construction can be considered originalist. Viewing proper
construction as a product of, and limited to, the spirit of the Constitution, strikes
some of the same chords as appeals to the original intentions of the framers as a
form of originalism—that is, it echoes the “old originalism.”
If the framers’ intent is conceived as the framers’ objectively manifested
purposes—rather than as either the subjective intentions of particular persons or
the framers’ expectations as to how the principles set forth in the Constitution
would apply to particular sets of facts—and that intent/purpose is then
286
McCulloch, 17 U.S. at 423. See also Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan,
J., dissenting) (observing that “cases in which statutes have been held to be void, because
unreasonable, are those in which the means employed by the legislature were not at all germane
to the end to which the legislature was competent.”).
62
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
formulated at the historically justified level of abstraction, the old “original intent
originalism” can be viewed as an “originalist” method of constitutional
construction, as opposed to interpretation. Reformulated in this way, original
intent originalism can be conceived as seeking the “spirit of the Constitution”
when the letter of the Constitution—its original public meaning—is
underdeterminate.
Old originalists often proceeded by asking “what would the framers do?”—
which one of us disparaged as “channeling the framers.”287 Because the facts
arising in certain cases—say, cases involving violent video-games—may have
been inconceivable to the framers, unlike public meaning originalism, this is not
an historical inquiry.288 Rather, it is a counter-factual thought experiment.
But the appeal of this approach has always been that it seems to put the
“framers’ values” ahead of the judge’s own, and is thereby constraining. And
indeed this is just what we are advocating: putting the objectively-identified
functions, purposes or spirit of the text itself ahead of the judge’s own purposes,
ideals or political preferences. If this make good faith constitutional construction,
an originalist theory of construction, then make the most of it.289
As an “originalist” approach to construction, good faith constitutional
construction is a superior to the “original methods originalism” championed by
McGinnis and Michael Rappaport. Original methods originalism purports to
ground the original methods of “interpreting” the Constitution in its original
meaning. For example, as we have seen, McGinnis attempts to ground the “duty
of clarity” in the original meaning of “[t]he judicial power.”
We freely concede that if a particular method of interpretation (or
construction) was widely understood by the public as being communicated or
implicated by the text, then it would qualify as part of the original meaning. So
too if a term would have been recognized as a legal “term of art” and the term
had a widely-shared meaning within the legal community.290
287
See RESTORING THE LOST CONSTITUTION, supra note 40, at 111.For a call for
originalists to return to this approach, see Steven D. Smith, Meanings or Decisions? Getting
Originalism Back on Track, Library of Law and Liberty, December 2, 2014, available at
http://www.libertylawsite.org/liberty-forum/meanings-or-decisions-getting-originalism-back-ontrack/ (terming this approach “original decisions originalism.”).
288
See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011).
289
Towards the end of his paper criticizing Justice Scalia’s construction work in Heller,
Professor Lund provides a sketch of what he terms “conscientious originalism” that is strikingly
similar to our own prescription for constitutional construction. See Lund, supra note 171, at 1372
(“When the text does not supply an adequately precise answer, a conscientiously originalist court
has no choice but to decide the issue in light of the purpose of the provision as that purpose was
understood by those who adopted it.”). We are not surprised by the similarity and suspect that, in
practice, what we are calling good faith construction may well be the dominant method of
applying or implementing the original meaning of the text when the communicative content of
the text itself is insufficient.
290
Thus a “bill of attainder” was understood to refer to a legislative measure that declared
specific people to be guilty of crimes without a judicial trial and imposed “pains and penalties”
upon them. U.S. Const. art. I, §9, cl. 4. See Charles H. Wilson Jr., The Supreme Court's Bill of
Attainder Doctrine: A Need for Clarification, 54 Cal. L. Rev. 212 (1966).
63
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
We do not believe, however, that McGinnis or Rappaport have to date
provided sufficient evidence in support of any particular legal method to
establish it as part of the communicative content of the text. Until such evidence
is provided, we think original methods originalism is better conceived as a
potential theory of constitutional construction. That is, for reasons relating to the
rule of law and other constitutional values, when the original meaning of the text
is insufficient to resolve a case or controversy, McGinnis and Rappaport advise
that judges should today apply the judicial methods of construction that were in
effect at the time the particular provision of the text was ratified.291
We contend that good faith constitutional construction is superior to original
methods as a theory of construction. To make the original methods a part of the
letter of the Constitution, McGinnis and Rappaport have had to claim that the
entire Constitution only appeared to be a charter of government that was capable
of being understood by the general public—including the delegates to the
ratification conventions who were not attorneys. In fact, they claim, the
Constitution was actually a legal document, whose meaning is ultimately to be
determined by lawyers using their own distinctive methods, generally known
only to them. In other words, it is the “lawyers’ meaning” of the entire document
that the public would have accepted, and not the meaning that was accessible by
the general public without benefit of legal counsel.
More problematic still for McGinnis and Rappaport are the explicit
representations by the Constitution’s defenders that the Constitution was capable
of being understood by the general public without the aid of legal specialists.
Consider Oliver Ellsworth’s reply to Elbridge Gerry’s criticism of the proposed
Constitution—a reply that was published in the Connecticut Courant.292 Gerry,
speaking at the Massachusetts General Court, objected to the Constitution in part
because of its “ambiguous” and “indefinite” language vesting power in the
federal government;293 Ellsworth responded by acknowledging an inherent
ambiguity in all language but stressing that the Constitution had been written
“with brevity, and in the plain common language of mankind.”294 He went on to
explain that the Constitution’s “excellency” lay in the fact that it was expressed
in terms that were intelligible to the “people who are to be its judges,” not merely
the “honorable gentleman.”295 Had the Constitution been “expressed in the
291
In addition to their failure to present enough evidence on behalf of particular original
methods, McGinnis and Rappaport have paid inadequate attention to the implication of their
approach that potentially requires different methods of interpretation be applied to clauses that
were ratified at different points in our history. In this regard, their approach structurally
resembles that of Richard Re, who maintains that different justices are bound by different
meanings depending on when they took their oath.
292
“A Landholder” [Oliver Ellsworth] V, Connecticut Courant, Dec. 3, 1787, reprinted in 1
DEBATE ON THE CONSTITUTION, supra note 52, at 240.
293
Ellbridge Gerry to the Massachusetts General Court, Massachusetts Centinel (Boston), Nov.
3, 1787, reprinted in 1 DEBATE ON THE CONSTITUTION, supra note 52, at 231.
294
1 DEBATE ON THE CONSTITUTION, supra note 52, at 240.
295
Id.
64
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
scientific language of the law,” wrote Ellsworth, it “would be to the great body
of the people obscure, and to accept it they must leap in the dark.”296
Nor is this an isolated example. In perhaps the most quoted line in any
Supreme Court decision, Chief Justice John Marshall declared in McCulloch v.
Maryland that “we must never forget that it is a Constitution we are
expounding.”297 By this he meant that it should remain general: “its great
outlines should be marked, its important objects designated, and the minor
ingredients which compose those objects be deduced from the nature of the
objects themselves.”298 But why?
The alternative to a broad outline, he wrote, was a document that “would
partake of the prolixity of a legal code….”299 And the problem with such a
document is that it “could scarcely be embraced by the human mind. It would
probably never be understood by the public.”300 Marshall’s canonical
characterization of the nature of “a constitution” is fundamentally inconsistent
with the claim that our Constitution is a lawyers’ document, with language
generally requiring legal training to understand.
Original methods originalists must shoulder the burden of demonstrating
that those who ratified the Constitution leapt into the dark despite being
promised that they needed not do so. McGinnis and Rappaport have yet to
reconcile such representations with their claims that the Constitution depends
upon “those with legal knowledge to explain its operation to the public at
large.”301
In contrast, good-faith constitutional construction, based on the spirit of
the Constitution, rests on the function or purpose of particular clauses, or of the
Constitution as a whole. These functions were readily accessible to the general
public, usually by extrapolating from the text itself. Even if someone needed an
explanation of a particular clause by someone more knowledgeable, this would
not have been an overly technical one. For example, that the function of the
Second Amendment was to protect the public’s right to collective and personal
self-defense, as well as to prevent the disarming of the general militia, would
have been easily understandable by—if not obvious too—the general public.
For all these reasons, if the label “originalist” is to be applied beyond the
activity of interpretation—that is, identifying the communicative content of the
letter of the Constitution at the time it was enacted—then the activity of good
faith constitutional construction based on the spirit of the Constitution can be
characterized as an originalist theory of constitutional construction.
296
Id.
McCulloch, 17 U.S. at 407.
298
Id.
299
Id. (emphasis added).
300
Id. (emphasis added).
301
McGinnis & Rappaport, supra note 9, at 772.
297
65
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
B. Not Useful
Recall Robert Summers’s claim that Steve Burton’s unifying theory of
good-faith performance would not be particularly useful in distinguishing proper
from improper judicial conduct. A similar objection might be made to our theory.
Have we really simplified anything by instructing judges to have recourse to the
function of constitutional provisions and, failing that, the function of the
Constitution as a whole, or by presenting the exercise of discretion under the
letter to undercut the spirit as a breach of the fiduciary duty of good faith?
We believe that we have indeed simplified—or perhaps “clarified” is the
better term—things quite a bit and helpfully so. Rather than being left alone to
develop and apply their own normative theories when the text does not yield a
determinate answer, judges can take comfort in the fact that they do not leave
empirical inquiry behind when they move beyond the realm of interpretation.
Nor do they leave the law behind.
Judges who enter the construction zone do not necessarily cease to be
empirical readers and they do not necessarily cease to exercise judgment in
accordance with law rather than will. The rest of us can take comfort in the fact
that we can evaluate what judges do in the realm of construction in the same
manner that we evaluate what they do in the realm of interpretation. We need not
accept as “consistent” with the law any and all constructions that do not logically
contradict the text of the Constitution. We, the beneficiaries, can better monitor
our fiduciaries.
Further, by viewing judges as fiduciaries and viewing construction through
the lens of fiduciary duty, we have helped to bring construction within the vision
of government embodied in the Constitution itself. We can see judges as the
Constitution presents them, and evaluate the rules that they fashion accordingly.
With a proper understanding of the trust we repose in judges to follow the
Constitution’s instructions, we can appreciate the full extent of the vice of
constructions that thwart the operation of constitutional provisions. They expose
the retained rights of the people to arbitrary power—they also represent a
profound betrayal of trust that each of us should feel personally.
Judges should therefore not begin a case, say, involving a constitutional
challenge to the adjudication of federal securities laws by administrative law
judges who are not appointed by the President, a department head, or the
judiciary, by speculating about how the principles of the Declaration might
apply.302 Put another way, judges should not use the spirit of the Constitution to
undermine its letter. To the contrary, this is a favored technique of “living
constitutionalists” who, after identifying a principle “underlying” the text, then
leave the text behind.303
We have already discussed how the Court in the Slaughter-House neglected
the text of the Privileges or Immunities Clause as a consequence of its narrow
302
See Hill v. SEC, 825 F.3d 1236 (11th Cir. 2016).
See Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 411-416 (2007)
(contrasting two uses of “underlying principles).
303
66
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
understanding of the provision’s spirit and, as a result, failed to capture either its
letter or its spirit. To our mind, this was because the majority of the Court
disagreed with the spirit of the Privileges or Immunities Clause, and for this
reason, gave the text an unreasonable meaning, relying in part on a grammatical
ambiguity in the text.
The phrase “of citizens of the United States,” could be qualifying either the
set of persons whose “privileges or immunities” or fundamental rights are now
protected against state infringement, namely, “citizens of the United States.” Or
it could be used to qualify the set of rights now protected against state
infringement: namely, only those “privileges or immunities” belonging to
persons by virtue of their being “citizens of the United States,” as distinct from
the set of privileges or immunities they enjoy as citizens of their own state.
Attempting to recapture the “opportunity foregone” by the adoption of the
Fourteenth Amendment with which the majority disagreed was an exercise in
bad faith. Although evidence of original meaning strongly supports the former
interpretation of the letter of the text, because the majority disagreed with its
spirit, the majority justified its adopting the latter interpretation with an overly
narrow conception if the Section’s spirit or purpose. In so doing, it acted in a
manner entirely consistent with living constitutionalism’s appeal to underlying
principles either to expand or contract the scope of a constitutional provision.304
We can find a more recent example in Justice Stephen Breyer’s dissent in
McCutcheon v. FEC,305 a case involving provisions of the Bipartisan Campaign
Reform Act that limited the total amount of political contributions that any one
person could give to federal candidates, political committees, and political
parties combined in a two-year election cycle. Justice Breyer began by
identifying “one reason why the First Amendment protects political speech”: the
promotion of a “politically oriented ‘marketplace’ of ideas.”306 Although Breyer
noted that “the First Amendment advances . . . the individual’s right to engage in
political speech,”307 he quickly added that the First Amendment “advances . . .
also the public’s interest in preserving a democratic order in which collective
speech matters,” and the rest of his opinion focuses almost exclusively on the
latter “interest.”308
To be sure, Breyer was correct that the promotion of a politically-oriented
marketplace of ideas—or, if you prefer, “debate on public issues” that is
“uninhibited, robust, and wide-open”—is among the functions of the First
Amendment.309 Lost in Breyer’s interest-balancing was the significance of the
fact that the First Amendment’s text expressly protects “the freedom of speech”
and “the freedom of speech,” understood in historical context, refers to an
individual right—a natural right that one could enjoy in the absence of
304
See id.
134 S.Ct. 1434 (2014).
306
McCutcheon, 134 S.Ct. at 1467 (Breyer, J., dissenting).
307
Id.
308
Id.
309
New York Times, Co. v. Sullivan, 376 U.S. 254 (1964).
305
67
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
government and prior to any “democratic order.”310 Nor did Breyer acknowledge
that the text of the First Amendment draws no distinction between different kinds
of subject matter—as discussed above311—by way of ensuring that individuals
have the freedom to express themselves on any subject at all, so long as the
content or mode of their expression does not injure others.
Careful attention to the text of the First Amendment thus discloses its
primarily individualist function. By losing track of the text, Breyer also lost track
of any function of the text other than the one that he has identified and so he
confused a primary function of the text with a secondary function. In the end, he
advocated an approach to evaluating contribution limits that would lend itself
easily to the suppression of individual rights on the basis of vaguely-defined
“collective” interests.
In this way, we have situated the activity of construction within originalism
broadly construed; we have situated it within the law of the Constitution; we
have justified it with reference to the concept of judicial duty that is incorporated
into our law; and we have illustrated how living constitutionalism supplants the
“original spirit” of the text with its own narrower or broader appeal to the
supposed underlying purposes or spirit of the text.
We are confident that the benefits of distinguishing between the original
letter and spirit of the Constitution in this way, while reaffirming the propriety of
both, will be considerable. We also expect that our theory, if it is adopted, will
provide more guidance over time as precedents are set.
C. Too Philosophical
We embarked on this project in part to address critics’ concerns that
constitutional construction invites judges to assume the posture of philosophers.
And yet we have stressed that there are contexts in which judges must have
recourse to political theory. It may be objected that by acknowledging the
legitimacy of recourse to political theory, we have confirmed in fact confirmed
critics’ worst fears about construction.
However, we do not propose that judges have immediate recourse to
political philosophy or theory in resolving constitutional cases. To the contrary,
the particular political philosophy or theory that is embodied in our law should
only be consulted when the communicative content of the text is inadequate to
the task at hand—for example, when resolving the latent ambiguity in the
Privileges or Immunities Clause. And when this is required, it is the spirit—or
philosophy or theory—of this Constitution that is binding. So the Court in
310
See 3 ELLIOT’S DEBATES, supra note 52, at 449 (statement of Patrick Henry at the Virginia
ratifying convention) (describing the “freedom of the press” as among the “rights of human
nature”); Roger Sherman, Proposed Committee Report (July 21-28, 1789) in CREATING THE
BILL OF RIGHTS 266, 267 (Helen E. Veit et al. eds., 1991) (rights of “speaking, writing, and
publishing
. . . sentiments” are among the “natural rights which are retained by [individuals]
when they enter society”).
311
Infra at notes __-___.
68
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Slaughter-House can be faulted for replacing the original publicly-accessible
purpose of the Privileges or Immunities Clause with its own preferred conception
of federalism.
Even if they can justify their own preferred normative theory as being
within the bounds set by the linguistic meaning of the Constitution, judges are
thus not free in good faith to substitute their theory for the actual spirit of this
Constitution. To be faithful agents of the people and uphold their oath, judges are
duty-bound to give effect to the functions of the provisions implicated in a given
case or, failing that, the function of the Constitution as a whole. Only those
normative commitments are part of the positive law of the land, and judges act in
bad faith when they stray from those commitments in favor of their own
normative theories.312
To reiterate lest we be misunderstood, direct recourse even to the
Constitution’s political philosophy or theory—that is, its spirit—should be the
last resort of a judge deciding a constitutional case, not the first step. We have
emphasized the value of writtenness—a value that risks being lost if judges
neglect the letter in pursuit of the spirit. The Constitution’s genius, however, lies
not primarily in its writtenness but in the substance of what is written.
The Constitution is valuable not merely because it is written but because it is
written well—the legal regime it establishes provides those who live under it
with adequate assurance that assertions of government power authorized by it
will be necessary to protect the rights of others and will not improperly violate
the rights of those on whom they are imposed.313 Overhasty recourse to political
philosophy risks depriving us, not only of a “law of rules,” but a law of good
rules.314
We unapologetically affirm that the Constitution is designed to implement a
particular political philosophy, and that judges must have direct recourse to it in
certain contexts. But that is quite a different thing from endorsing (a) recourse to
any number of political philosophies that can somehow be reconciled with
purportedly thin semantic meaning, (b) recourse to the Constitution’s political
philosophy in the first instance, or (c) recourse to the Constitution’s political
philosophy in contradiction of the text.
We reject all such moves, which in many cases are employed in bad faith by
which we mean with the purpose of evading the original letter and spirit of the
Constitution with which the judges disagree.
312
See JUDICIAL REVIEW IN AN OBJECTIVE LEGAL SYSTEM, supra note at 13, 238
(“[J]udges must draw on the philosophy that is in the law, but not inject their own.”).
313
RESTORING THE LOST CONSTITUTION, supra note 40, at 3-4 (explaining that such an
assurance is required for laws to bind in private individuals in conscience in the absence of
unanimous consent).
314
See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).
69
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
D. The Spirit Will Lead Judges Astray
Judicial recourse to the spirit of the law has a bad reputation among
textualists, in part because of its association with Church of the Holy Trinity v.
United States.315 Holy Trinity was an 1892 decision that the late Justice Antonin
Scalia denounced as a “prototypical” example of the perils of using legislative
history to inform statutory interpretation.316 There the Court relied on the
“familiar rule that a thing may be within the letter of the statute and yet not
within the statute because not within its spirit nor within the intention of its
makers”317 to improperly—say the critics—narrow the scope of the statute.
Textualists offer two related objections to consulting the spirit of the text:
First, they say that the spirit of the law is simply not the law and thus not a
proper object of judicial focus.318 Second, textualists say recourse to the spirit
will lead judges to depart from the law’s actual meaning. 319 As our previous
discussion shows, we are sympathetic with concerns about these abuses of
recourse to the “spirit” or “intent” of the law. Still, we think that the potential for
abuse is not properly addressed by eliminating proper recourse to the spirit of the
laws. Indeed, we believe that courts make bad faith use of this move precisely
because utilizing the spirit of the laws is both inevitable and sometimes
warranted.
In support of their critique, textualists might refer to Hamilton’s response to
Anti-Federalists concerns that federal judges would draw upon the spirit of the
Constitution to enlarge the power of the federal government.320 In Federalist 81,
315
143 U.S. 457 (1892).
See Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States
Federal Courts in Interpreting the Constitution and Laws, in ANTONIN SCALIA, A MATTER
OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 18-23 (Amy Gutman ed.,
1997).
317
Id. at 459.
318
See Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent L. Rev. 441,
443 (1990) (arguing that “laws themselves do not have purposes or spirits—only the authors are
sentient”).
319
See John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 450 (2005) (in
the context of statutory interpretation, “efforts to augment or vary the text in the name of serving
a genuine but unexpressed legislative intent risks displacing whatever bargain was actually
reached.”).
320
See “Brutus” XII, N.Y. J., Feb. 7 and 14, 1788, reprinted in 1 THE COMPLETE ANTIFEDERALIST, supra note 60, at 423 (warning that judges will draw upon the spirit of the
Constitution to “give [the Constitution] such a construction as to extend the powers of the general
government, as much as possible, to the diminution, and finally to the destruction, of that of the
respective states.”). Brutus did not deny the legitimacy of recourse to the spirit—he worried
about abuses. See “Brutus” XI, N.Y. J., Dec. 13, 1787, reprinted in 1 THE COMPLETE ANTIFEDERALIST, supra note 60, at 389 (“It is a rule in construing a law to consider the objects the
legislature had in view in passing it, and to give it such an explanation as to promote their
intention. The same rule will apply in explaining a Constitution.”). Not all Anti-Federalists
shared this precise concern—others worried that the spirit would be ignored. See “Agrippa,”
MASS. GAZETTE, Feb. 5, 1788, reprinted in 2 THE DEBATE ON THE CONSTITUTION,
supra note 267, 156 (fearing that “intention” of the Constitution would be disregarded).
316
70
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
Hamilton replied that “there is not a syllable in the plan under consideration
which directly empowers the national courts to construe the laws according to
the spirit of the Constitution.”321
This statement by Hamilton notwithstanding, as we explained above,322 the
evidence is overwhelming that recourse to the spirit was regarded as an entirely
legitimate, and indeed essential, move in the interpretation and construction of
written instruments at common law and during the Founding era.323 Federalist 81
will not bear the weight of a rejection of any and all judicial recourse to the
spirit.
For one thing, after denying that the text of the Constitution empowers
courts to “construe the laws according to the spirit of the Constitution,” Hamilton
added “or which gives them any more latitude in this respect than may be
claimed by the courts of every State.”324 Yet, state courts could—and did—have
recourse to the spirit.325
Further, Hamilton went on to “admit . . . that the Constitution ought to be
the standard of construction for the laws, and that wherever there is an evident
opposition, the laws ought to give place to the Constitution,” thus acknowledging
that the Constitution authorizes judges to hold unconstitutional laws void.326 But,
he wrote, “this doctrine is not deducible from any circumstance peculiar to the
plan of the convention, but from the general theory of a limited Constitution.”327
So Hamilton’s denial that any “syllable in the plan” empowers judges to
construe the laws according to the spirit of the Constitution should not be
interpreted as a denial that judges ever have such a power. After all, according to
Hamilton, not a syllable in the plan expressly authorized judges to hold
unconstitutional laws void either, and yet he represented that judges would have
that power.
Moreover, in Federalist 32, Hamilton accused Anti-Federalists of distorting
the spirit of the proposed Constitution in their arguments that it conferred upon
Congress an exclusive power to tax all articles other than imports and exports.
Hamilton pointed out that the fact that states were specifically forbidden from
taxing exports and imports (absent “the consent of Congress” or “for the purpose
of executing [their] inspection laws328) “implies an admission that, if it were not
inserted, the States would possess the power it excludes; and . . . a further
admission, that as to all other taxes, the authority of the states remains
321
THE FEDERALIST No. 81 (Hamilton), supra note 3, at 418.
Infra at notes ___-___.
323
See LAW AND JUDICIAL DUTY, supra note 77, at 53-8; Natelson, supra note ___.
324
THE FEDERALIST No. 81 (Hamilton), supra note 3, at 418.
325
See Caton, 8 Va. (4 Call).
326
THE FEDERALIST No. 81 (Hamilton), supra note 3, at 418.
327
Id.
328
See U.S. CONST art. I, §10, cl. 2.
322
71
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
undiminished.”329 Therefore, Hamilton contended that it “could not have been
the intention,” to create an exclusive taxing power in Congress, “and that [the
Constitution] will not bear a construction of the kind.”330 Following the
ratification of the Constitution, Hamilton would again have recourse to the spirit
of the law in arguing that the Constitution authorized Congress to establish a
national bank.331
There is no objection to judicial reliance on the spirit of the Constitution that
cannot be made against originalism more generally. Yes, identifying the
functions of constitutional provisions may at times be difficult work. (Although
at other times, it may be pretty easy.) Yes, formulating rules that are calculated
to implement those functions is an enterprise that is fraught with peril. (Although
not as great a peril as formulating rules to implement a judge’s own political
commitments.) But the same can be said for any effort to ascertain the linguistic
meaning of centuries-old text and give effect to that meaning in complex, factsensitive cases that those who enacted the text into law did not anticipate or
could not anticipate.
Our thesis is that there are contexts in which judicial recourse to the spirit of
this Constitution is not only proper but necessary, so that the law of the land may
be given as full effect as possible. Judges who are duty-bound to give effect to
the law cannot in good faith refuse to pursue the spirit of the law for fear of
being led astray.
CONCLUSION
We continue to insist that, as an empirical matter, originalism cannot do
without the interpretation-construction distinction, nor without the construction
zone. But neither can originalism do without a methodology that equips judges to
navigate the construction zone—one that enables them to give full effect to the
law and which safeguards the rest of us from arbitrary judicial power.
Originalism is still in an early stage of development as a school of constitutional
interpretation. The project of good-faith construction has only just begun.
We have advanced three propositions in this paper:
● First, the Constitution entrusts judges with a great deal of discretionary
power, and with such discretion comes corresponding fiduciary duties.
329
THE FEDERALIST No. 32 (Hamilton), supra note 3, at 156. Hamilton insisted that the
Constitution granted federal and state governments “concurrent and co-equal authority” over
general taxation. Id.
330
Id. (emphasis added).
331
Much like Spooner, Hamilton denied that recourse to the personal intentions of the framers
was appropriate—the legally binding intention was to be sought “in the instrument itself.”
ALEXANDER HAMILTON: WRITINGS 623 (Library of America, 2001). But in making his
case for the constitutionality of the bank, he appealed to the “object of the [government’s]
specified powers.” Id. at 620 (emphasis added).
72
BARNETT & BERNICK: THE LETTER AND THE SPIRIT
●
Second, upon voluntarily taking their oath, judges become morally and
legally bound to follow the instructions given them in the written
Constitution.
● Third, judges should wield their discretionary power in a manner that is
consistent with the “supreme law of the land,” consisting in both its letter
and its spirit, resolving cases on the basis of the spirit where the letter fails.
If judges are to discharge “the duty of that power”332 to interpret and nullify
unconstitutional laws, they need a methodology for understanding the nature and
limits of their inevitable discretion to implement the meaning of the text: such
discretion must be exercised on good faith.
The good-faith construction project is not merely a means of meeting a need
within originalism. When the letter of the law gives out, the law does not—and
neither does judicial duty. For judges to throw up their hands or rely upon their
favorite normative theories when the text does not yield an answer is nothing
short of an abdication of judicial duty. It threatens to place Americans in a
condition not unlike that in the state of nature, where no “known and indifferent
judge” is available to measure power against law and the enjoyment of our rights
is “very unsafe, very unsecure.”
Recognizing the duty of good-faith constitutional construction is a means of
meeting a need as urgent as the need for our independent judiciary itself.
332
IREDELL, supra note 255, at 169.
73