• Video

What Is Good Faith Originalist Construction?

Is constitutional construction contrary to originalism? Professor Randy Barnett explains that construction can be done in a non-originalist manner, but that “good faith” construction is actually a necessary tool for originalist interpretation. Good faith construction is faithful not only to the original meaning of the text but also primarily to the text itself. https://youtube.com/watch?v=88XPPLvM_ug


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." Then they would claim that's consistent with the original purpose of the constitution. They would then claim that's consistent with the original purpose of the second amendment. Faithful constitutional construction must be faithful to the text of the constitution. It cannot be used to undermine or override that text. 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. 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. 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.

Related Content