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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.


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