Michael Dorf's most recent Findlaw column is worth a look. Here's a taste:
Originalists and living-Constitutionalists part ways over how to interpret ambiguous provisions of the constitutional text. Originalists say that judges should resolve textual ambiguity by consulting the prevailing views of the Founding generation. (I explored the relation between this formulation of originalism and the more traditional focus on "framers' intent" in an earlier column, but we can put aside these nuances here.) The act of ratification by that earlier generation of Americans gave the text its power as law, and therefore, that earlier generation's understanding should prevail, originalists say.
By contrast, living-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.
But the contemporary theoretical landscape is a lot more complicated than that. (Dorf is writing a short column and certainly isn't obliged to do a literature review in that context.) Dorf is assuming a theoretical move that might be called "incompatibilism"--the view that originalism and living constituitonalism are incompatible. But this view has been challenged, most prominently by Jack Balkin, who argues for "compatibilism"--the view that adherence to original public meaning is consistent with "living constitutionalism" in what we might call the "zone of construction" (relying on the Whittington-Barnett distinction between "interpretation" and "construction").
There is, however, a much deeper problem with Dorf's description of the theoretical landscape. Dorf says "Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls," but "clarity" is itself a poor term to describe what is going on here. There are two distinct sources of constitutional "underdeterminacy": vagueness and ambiguity.
Ambiguity occurs when a constitutional unit of meaning (term, phrase, or clause) has more than one sense. When original public meaning (conventional semantic meaning at the time of constitutional utterance) is ambiguous, context usually resolves the ambiguity. Living constitutionalism is usually irrelevant in cases of ambiguity. The constitution uses the phrase "domestic violence" to refer to insurrection or revolt within the territory of the United States. No one sensible thinks that the fact that "domestic violence" has now acquired a new sense, referring to spouse and/or child abuse creates an ambiguity that should be resolved by reference to "living constituitonalism". Originalists and living constitutionalists should be agreed that when the context of constitutional utterance resolves an ambiguity, the disambiguated semantic content of the constitution has the force of law.
Vagueness occurs when a constitutional unit of meaning has borderline cases. For example, phrases like "executive power" or "freedom of speech" are vague. The central insight of the "New Originalism" is that the original public meaning of the Constitution can just be vague--original meaning can run out. When the constitution is vague, resolution of the vagueness (line drawing) requires what Keith Whittington calls "constitutional construction." But precisely because construction operates in the zone of vagueness where "original public meaning" (conventional semantic meaning at the time of constitutional utterance) runs out, there can be no deep disagreement between originalists (qua originalists) and living constitutionalists on the proper method of construction. Of course, particular originalists can disagree among themselves and with living constituitonalists about methods of construction. But when originalists turn their attention to methods of construction, they move beyond the core commitment of originalism to the proposition that the semantic content of the constitution wax fixed at the time of constitutional utterance. That is, the views of particular originalists about proper methods of constitutional construction are outside the core of originalism as a theory.
Read Dorf's fine column.
