Posted by Randy Barnett:
The Misconceived Assumption About Constitutional Assumptions:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228831876
My paper, [1]The Misconceived Assumption About Constitutional
Assumptions, has now been posted to SSRN. It addresses what has, for
me, been a vexatious issue concerning the original meaning of the
Constitution: speaking solely descriptively, does this meaning include
the background assumptions held (by whom?) at the time the writing was
enacted and/or amended? This turned out to be a surprisingly difficult
question to answer, but is essential for anyone who is interested in
the content of original meaning--whether to embrace or reject that
content as binding on interpreters today. Here is an abstract of the
paper:
Both originalists and nonoriginalists alike often assume that
background assumptions widely held when the Constitution or its
amendments were enacted are part of the original meaning of the
text. Originalists sometimes appeal to these background assumptions
to render the meaning of more abstract words or phrases more
determinate; nonoriginalist point to odious or outmoded assumptions
as proof that original meaning is objectionable and should be
rejected.
In this paper, I examine the proper role of background assumptions
in constitutional interpretation when ascertaining the meaning of
the terms, and in constitutional construction when applying this
meaning to particular cases and controversies. Rather than present
a normative argument on behalf of originalism, I merely try to
identify what the original meaning of the text really is--in
particular, the circumstances in which background assumptions
become a part of that meaning. While this analysis should be of
obvious interest to originalists, it should also be of interest to
any nonoriginalist who believes that the original meaning of the
text is at least one factor or "modality" of constitutional
interpretation to be balanced against other considerations.
In Part I, I explain how express and implied in fact terms provide
the meaning of both written contracts and written constitutions. In
Part II, I distinguish this meaning of the text from the background
assumptions that can result in the failure of a contract when
circumstances arise about which the text is silent. Unlike
contracts, however, with constitutions "failure" is not an option.
Further, while background assumptions can be relevant to
interpreting the meaning of ambiguous terms in both contracts and
constitutions, most sustained disputes over constitutional terms
concern, not the interpretation of ambiguity, but the construction
of terms whose meaning is vague.
In Part III, I consider how one's approach to the construction of
vague terms will depend on one's theory of constitutional
legitimacy-that is, what makes a constitution "binding." If, like
contracts, the legitimacy of constitutions is based on original
consent of the governed then, as with contracts, background
assumptions can be viewed as silently conditioning that consent. On
the other hand, if constitutional legitimacy is based on the
justice of imposing laws on a nonconsenting public, then odious
background assumptions are irrelevant to construing vagueness. This
divide is illustrated by the antebellum debates over the
constitutionality of slavery. Finally, in Part IV, I apply this
analysis to three background assumptions: (1) that there are
unenumerated natural rights, (2) that there is an unenumerated
police power of states, and (3) that certain interpretive methods
would be employed by courts.
Download it [2]here.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1285485
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1285485
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