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107 Geo. L.J. 1 (2018-2019)
The Letter and the Spirit: A Unified Theory of Originalism

handle is hein.journals/glj107 and id is 4 raw text is: ARTICLES The Letter and the Spirit: A Unified Theory of Originalism RANDY E. BARNETT* & EvAN D. BERNICK 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 constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the construction zone. When com- bined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism. Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. 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 judges and a corre- sponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in this Constitution in good faith. This means that judges engaging in constitu- tional construction (or implementation) must seek to give legal effect to both the Constitution's letter (its original public meaning) and its spi- rit (the original function or purpose of the particular clauses and general structure of the text). Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith con- struction. Good-faith construction consists of (a) accurately identifying * Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution. 0 2018, Randy E. Barnett & Evan D. Bernick. We thank the participants in Seventh Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, held at the University of San Diego School of Law in February of 2016-and especially John McGinnis, our designated commentator-for constructive criticisms of an earlier paper. The analysis presented in that paper-and even its basic thesis-has been so substantially revised that this is, for most intents and purposes, a different paper. We are also very grateful to Joel Alicea and Larry Solum for detailed feedback on the previous version as well as our subsequent revisions, as well as to Mike Ramsey, Sai Prakash, and Eric Claeys for their helpful suggestions. We also benefited from the feedback we received at the Public Law Colloquium at Northwestern Law School, and at faculty workshops at Antonin Scalia and Georgetown law schools. Permission to distribute for educational purposes is hereby granted. ** Visiting Lecturer, Georgetown University Law Center; Fellow, Georgetown Center for the Constitution. 1

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