The Download of the Week is The Duty of Clarity by John O. McGinnis. Here is the abstract:
This article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.
The best categorization of this duty of clarity and clarification is that it was an aspect of the judicial power granted under Article III of the Constitution. Thus, the article rejects James Bradley Thayer’s form of judicial deference - that legislation should be uphold on the basis of any interpretation that could be embraced by “a rational person” - as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands without any clear framework of discipline provided by legal rules. As a result, Thayer’s concept of constitutional deference has a larger scope and effect than it did at the jurisprudence of the Founding where judges were not seen as lawmakers in that sense and where the judicial duty of clarity has jurisprudential roots in natural law rather than positivism. But the article also rejects the notion that judicial review permits judges to overturn legislation based on their own view of the Constitution, even if their interpretation is not clearly the best one. The duty of clarity casts doubt on the legality of constitutional construction as opposed to constitutional interpretation in the course of judicial review, because constitutional construction can occur only when the meaning of the Constitution is unclear.
An important and deeply interesting paper. Highly recommended. Download it while its hot.