NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss Original Public Meaning Originalism and Constitutional Construction. Today’s episode features Professor Randy E. Barnett, who is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What is “new” Originalism - is it different from the Originalism you have described in the previous episodes? RANDY BARNETT: The new originalism really is just original public meaning originalism. With the following additional insight. And that is the original public meaning of the text only takes you so far to resolve actual cases and controversies. That sometimes more is required to apply the text to particular cases and controversies. Where in the text, for example, is more general or abstract. And that additional step itself is not itself interpretation. That additional step is what is called constitutional construction. You can call it anything you want. You can call it constitutional implementation if you want to. But whatever it is, it's an additional step besides interpretation. And that's the new originalism. PUBLIUS: What sources can be used for original public meaning originalism? RANDY BARNETT: To identify the original meaning of the text, you look at any evidence of what the public meaning of the words were at the time they were enacted. Obviously that would include debates that were taking place about word choices that were going to go into the text. But it also includes, even mundane items like private correspondence, private letters, newspaper stories, whatever that would tell you for example, what did commerce mean at the time the commerce clause was enacted? Did commerce include any gainful activity? Did commerce mean intercourse and did intercourse mean any social interaction? Is that what commerce meant? Well you look at evidence to see what commerce meant and for example you'll see that quite frequently, very, very often, commerce is distinguished from agriculture and manufacturing. You'll see agriculture, manufacturing and commerce telling you that the word commerce is different than the words agriculture and manufacturing. They convoke different activities. Evidence like that can come in a variety of forms. It can come in the debates about the commerce clause, but it could also come in private correspondence and newspaper articles that use the word commerce and distinguish it from other types of activities. PUBLIUS: What about constitutional construction? Is that necessarily in tension with Originalism? RANDY BARNETT: For over 15 years, I thought that the activity of constitutional construction was inherently non-originalist because I thought the term originalism was limited to the activity of interpretation. Identifying the original public meaning. Applying the original public meaning, not being interpretation also would not be originalist. I no longer think that that's right. I now think that constitutional construction as an activity should also be originalist. It should be originalist in the following sense. When engaged in constitutional application, one needs to be faithful to the original meaning of the text. And what does that mean? Faithfulness requires that one adhere to the original function, purpose, object, end or goal of the provision of the text that we're talking about. So constitutional construction should be as constrained by original purpose or original ends or original goals as constitutional interpretation is constrained by original meaning. Both together amount to a unified approach to originalism that unifies interpretation with construction and says, "They're both originalist." Here's another way to look at it. Constitutional interpretation concerns identifying the original meaning of the letter of the constitution. Constitutional construction involved applying that letter of the constitution consistently with its spirit. And when you can find the original letter with the original spirit, that is a unified approach to originalism. PUBLIUS: Can you explain the difference between this good faith originalist construction and living constitutionalism? RANDY BARNETT: Good faith originalist construction is confined. Constitutional construction needs to be done in good faith. And faithful constitutional construction is confined to effectuating the original purpose, the original function of the text. What living constitutionalists sometimes do is take the original purpose of the text and use that to supersede the original meaning of the text itself. So for example, if the original purpose of the text of the second amendment, let's say, was somehow to secure public safety, they will say, "Well, if now we think that public safety requires that nobody have a gun." They would then claim that's consistent with the original purpose of the second amendment. But faithful constitutional construction must be faithful to the text of the constitution. It cannot be used to undermine or overwrite that text. Which is essentially living constitutionalism. So faithful constitutional construction only applies when there is some uncertainty in the application of the original meaning of the text. So the text itself isn't telling you exactly what to do in a particular case. Faithful construction then fills in that gap .but the activity of filling in the gap cannot properly be used to override the original public meaning of the text that's being applied to a particular case. Constitutional construction has become controversial amongst originalists because some originalists believe it's so open ended that it basically undermines the appeal of originalism itself. If constitutional construction were done in a completely open ended way I would agree with them. But constitutional construction should not be done that way. Constitutional construction should be done in a constrained way. Constrained by the original purpose of function of a text, not just by its original meaning. Constitutional construction whatever, you call it is inevitable. Where the constitution speaks in broader or more general terms, you need implementing doctrines to apply that text to particular cases and controversies so judges may treat like cases alike. The activity of developing those intermediary doctrines, to apply the text to cases is constitutional construction, whether people want to call it that or not. But the doctrines that are developed in order to implement the original meaning of the constitution must not only be consistent with the original meaning of the text, it must be faithful to the original meaning of the text. Meaning faithful to the reasons why the text was written the way it was written. Interpretation is the activity of identifying the communicative content of the meaning of the text. What information is actually contained and communicated by the words on this page. What information is actually contained and communicated by the words in this little book. Construction is the activity of putting these words into legal effect. Giving them a legal effect. Applying them to cases and controversies when that activity is going to require more than simply reading the words off the page. PUBLIUS: A final but important question - Is Originalism adequate to address new and changing circumstances? RANDY BARNETT: Once you distinguish between interpretation and construction, interpretation meaning identifying the communicative content of the words of the Constitution from the activity of applying that content to particular cases and controversies, then you see that originalism can provide for change, but because the application to particular situations is always going to be different, you take the original meaning of the text and then you develop implementing doctrines to apply it to new circumstances. Those implementing doctrines, being constitutional constructions themselves, can change as circumstances change. That's the true living Constitution. It's living constitutional law to implement a fixed constitutional text. Most of the debate about whether originalism will keep up with changing social norms assumes that the text of the Constitution itself is something that governs changing constitutional norms, rather than the text of the Constitution is largely structural, and it allocates power to various other branches of government to adjust to changing in constitutional norms, like, for example, a popularly inactive Congress or a popularly inactive state legislatures. It's popularly inactive legislatures, through their legislation, empowered by a Constitution, that responds to changing social norms, not the Constitution itself. The Constitution may be a good Constitution or at least a good enough Constitution to be legitimate. That doesn't mean it's a perfect Constitution. For example, it may be that it's too hard to amend the Constitution, that somehow the rules governing amendments should be changed to make them easier, but that isn't about what the Constitution means. That's about whether the meaning of the Constitution is good enough and should be changed, so, therefore, that is not a challenge to originalism itself. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about Originalism. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, where we discuss Original Public Meaning Originalism and Constitutional Construction. Today’s episode features Professor Randy E. Barnett, who is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What is “new” Originalism - is it different from the Originalism you have described in the previous episodes? The new originalism really is just original public meaning originalism. With the following additional insight. And that is the original public meaning of the text only takes you so far to resolve actual cases and controversies. That sometimes more is required to apply the text to particular cases and controversies. Where in the text, for example, is more general or abstract. And that additional step itself is not itself interpretation. That additional step is what is called constitutional construction. You can call it anything you want. You can call it constitutional implementation if you want to. But whatever it is, it's an additional step besides interpretation. And that's the new originalism. What sources can be used for original public meaning originalism? To identify the original meaning of the text, you look at any evidence of what the public meaning of the words were at the time they were enacted. Obviously that would include debates that were taking place about word choices that were going to go into the text. But it also includes, even mundane items like private correspondence, private letters, newspaper stories, whatever that would tell you for example, what did commerce mean at the time the commerce clause was enacted? Did commerce include any gainful activity? Did commerce mean intercourse and did intercourse mean any social interaction? Is that what commerce meant? Well you look at evidence to see what commerce meant and for example you'll see that quite frequently, very, very often, commerce is distinguished from agriculture and manufacturing. You'll see agriculture, manufacturing and commerce telling you that the word commerce is different than the words agriculture and manufacturing. They convoke different activities. Evidence like that can come in a variety of forms. It can come in the debates about the commerce clause, but it could also come in private correspondence and newspaper articles that use the word commerce and distinguish it from other types of activities. What about constitutional construction? Is that necessarily in tension with Originalism? For over 15 years, I thought that the activity of constitutional construction was inherently non-originalist because I thought the term originalism was limited to the activity of interpretation. Identifying the original public meaning. Applying the original public meaning, not being interpretation also would not be originalist. I no longer think that that's right. I now think that constitutional construction as an activity should also be originalist. It should be originalist in the following sense. When engaged in constitutional application, one needs to be faithful to the original meaning of the text. And what does that mean? Faithfulness requires that one adhere to the original function, purpose, object, end or goal of the provision of the text that we're talking about. So constitutional construction should be as constrained by original purpose or original ends or original goals as constitutional interpretation is constrained by original meaning. Both together amount to a unified approach to originalism that unifies interpretation with construction and says, "They're both originalist." Here's another way to look at it. Constitutional interpretation concerns identifying the original meaning of the letter of the constitution. Constitutional construction involved applying that letter of the constitution consistently with its spirit. And when you can find the original letter with the original spirit, that is a unified approach to originalism. Can you explain the difference between this good faith originalist construction and living constitutionalism? Good faith originalist construction is confined. Constitutional construction needs to be done in good faith. And faithful constitutional construction is confined to effectuating the original purpose, the original function of the text. What living constitutionalists sometimes do is take the original purpose of the text and use that to supersede the original meaning of the text itself. So for example, if the original purpose of the text of the second amendment, let's say, was somehow to secure public safety, they will say, "Well, if now we think that public safety requires that nobody have a gun." They would then claim that's consistent with the original purpose of the second amendment. But faithful constitutional construction must be faithful to the text of the constitution. It cannot be used to undermine or overwrite that text. Which is essentially living constitutionalism. So faithful constitutional construction only applies when there is some uncertainty in the application of the original meaning of the text. So the text itself isn't telling you exactly what to do in a particular case. Faithful construction then fills in that gap .but the activity of filling in the gap cannot properly be used to override the original public meaning of the text that's being applied to a particular case. Constitutional construction has become controversial amongst originalists because some originalists believe it's so open ended that it basically undermines the appeal of originalism itself. If constitutional construction were done in a completely open ended way I would agree with them. But constitutional construction should not be done that way. Constitutional construction should be done in a constrained way. Constrained by the original purpose of function of a text, not just by its original meaning. Constitutional construction whatever, you call it is inevitable. Where the constitution speaks in broader or more general terms, you need implementing doctrines to apply that text to particular cases and controversies so judges may treat like cases alike. The activity of developing those intermediary doctrines, to apply the text to cases is constitutional construction, whether people want to call it that or not. But the doctrines that are developed in order to implement the original meaning of the constitution must not only be consistent with the original meaning of the text, it must be faithful to the original meaning of the text. Meaning faithful to the reasons why the text was written the way it was written. Interpretation is the activity of identifying the communicative content of the meaning of the text. What information is actually contained and communicated by the words on this page. What information is actually contained and communicated by the words in this little book. Construction is the activity of putting these words into legal effect. Giving them a legal effect. Applying them to cases and controversies when that activity is going to require more than simply reading the words off the page. A final but important question - Is Originalism adequate to address new and changing circumstances? Once you distinguish between interpretation and construction, interpretation meaning identifying the communicative content of the words of the Constitution from the activity of applying that content to particular cases and controversies, then you see that originalism can provide for change, but because the application to particular situations is always going to be different, you take the original meaning of the text and then you develop implementing doctrines to apply it to new circumstances. Those implementing doctrines, being constitutional constructions themselves, can change as circumstances change. That's the true living Constitution. It's living constitutional law to implement a fixed constitutional text. Most of the debate about whether originalism will keep up with changing social norms assumes that the text of the Constitution itself is something that governs changing constitutional norms, rather than the text of the Constitution is largely structural, and it allocates power to various other branches of government to adjust to changing in constitutional norms, like, for example, a popularly inactive Congress or a popularly inactive state legislatures. It's popularly inactive legislatures, through their legislation, empowered by a Constitution, that responds to changing social norms, not the Constitution itself. The Constitution may be a good Constitution or at least a good enough Constitution to be legitimate. That doesn't mean it's a perfect Constitution. For example, it may be that it's too hard to amend the Constitution, that somehow the rules governing amendments should be changed to make them easier, but that isn't about what the Constitution means. That's about whether the meaning of the Constitution is good enough and should be changed, so, therefore, that is not a challenge to originalism itself. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about Originalism. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!