Ronald C. Den Otter has posted A Conservative Case Against Originalism: The Problem of the Construction Zone and Its Implications on the Independent Law Journal website. Here is the abstract:
The issue with originalism that has generated by far the most scholarly interest and controversy over the years concerns how the original meaning can be recovered with enough confidence in a hard constitutional case to justify the outcome. With the advent of the New Originalism in the 1990s, an equally serious problem concerning this theory of constitutional interpretation arose when originalist scholars like Keith Whittington, Lawrence Solum, and Randy Barnett began to concern themselves with the process of application, in which an originalist judge must bridge the gap between the original meaning of the applicable constitutional provision and the facts of the case to render a decision. These new originalists called attention to two analytically distinct stages in the adjudication process: (1) “interpretation” (delving into the past to recover semantic or linguistic meaning) and (2) “construction” (giving legal effect to the constitutional provision in question through the application of the original meaning to the fact pattern). The former is empirical (or historical), and the latter is normative.
This Article addresses the problem of application of original meaning in the Construction Zone [hereinafter, CZ] and the implications of originalists’ failure to explain satisfactorily how construction is sufficiently originalist. While originalists have devoted considerable time to detailing what interpretation entails, by comparison, the CZ remains opaque. Academic originalists differ dramatically over what is supposed to happen there, even more so when a judge renders a decision. As of now, almost all of them accept the existence of the CZ, even though some originalists try to minimize its significance, a move that has not convinced non-originalists and a fair number of originalists as well. It is imperative then that an originalist judge be able to offer a convincing explanation of how her construction is consistent with the original meaning of the constitutional provision whose meaning is being litigated. Otherwise, originalism may too closely resemble living constitutionalism in the CZ, resulting in the conclusion that whether she is an originalist or not ultimately will not make much of a difference in practice. The inability of originalists to articulate an adequate theory of construction would be a devastating blow to any form of originalism.
An account of the precise relationship between interpretation and construction that originalists envisage still has not been articulated beyond vague and not terribly helpful claims that the original meaning must be consistent with the construction. This failure calls into question whether the process of how originalist judges decide important constitutional cases is originalist enough to deserve the appellation when construction seems to do so much work in a typical originalist argument. After all, the original meaning itself, whatever form it takes, is supposed to determine the outcome. Some originalists believe once they have discovered the more or less determinate meaning of a constitutional provision, the hard work is done, but extralegal considerations still play a role too. As it turns out, the process of construction is much more complicated in hard constitutional cases than too many originalists make it out to be. The judge must characterize the legally relevant facts of the fact pattern, which is not a value-neutral enterprise, and rely upon background knowledge that cannot be derived from the original meaning itself.
Even when the original meaning of the constitutional language in question is about as clear as it could be after the passage of so much time, an originalist judge still has plenty of work to do in the CZ. In showing why this situation is unavoidable, this Article draws on the philosophical work of Aristotle and Immanuel Kant and their thoughts about the nature of practical wisdom when it comes to deciding what to do. An agent who misses the morally salient features of the situation is likely to misapply the applicable rule, even a relatively determinate one. Along similar lines, an originalist judge who fails to size up the legally relevant features of the fact pattern of the case to be decided will not be able to apply even a determinate rule wisely or even competently.
Originalists have had more than enough time to reconcile various kinds of originalist interpretation with construction, which by definition cannot be originalist. If they cannot show that judicial discretion is constrained by an original something at the second stage of the decision-making process, that is a blow from which originalism may not be able to recover. That said, this Article tries to establish that this failure need not have a negative impact on conservative jurisprudence more generally. Indeed, it may be a blessing in disguise for conservatives and libertarians inasmuch as they can direct their attention elsewhere. Freed from preoccupation with elusive original meaning, they will be able to develop their own theories of what the Constitution ought to mean in more depth, not having to defend their interpretations of constitutional provisions based on questionable historical research done mostly by non-professional historians, and convince the country that on the merits, their arguments are better than rival progressive ones.
Highly recommended.