I posted early on Thomas Colby's fine paper on the Federal Marriage Amendment and originalism. Colby suggests that I might post some additional excerpts from the paper, which make the nature of his argument clearer, and I am very grateful to him for two reasons. First, my original post did not make it sufficiently clear how interesting and important Colby's article actually is. Second, my initial (all too brief) response certainly did not do justice to the subtlety and elegance of the paper. For both of those reasons, I urge you to read the whole paper, and a minimum to attend closely to the additional excerpts that are offered here. In addition, by considering the additional passages, we can delve deeper into Colby's very interesting argument.
This post begins with the additional passages from paper (suggested by Colby), and then proceeds to clarify and elaborate on my reaction to arguments. Let's begin with excerpts:
From the Introduction:
This Article is not grounded in a deconstructionist argument that language inherently has no objective meaning, such that all written instruments are inevitably ambiguous. Nor does it suggest that the Constitution in all particulars lacks an original public meaning. It argues instead that it is wrong to assume--as originalism generally does--that the fact that a constitutional provision was enacted necessarily means that there was supermajority support for (or at least willingness to go along with) a particular political or legal principle objectively reflected in its text. That assumption surely holds true for some constitutional provisions, and the original meaning of those provisions may well be ascertainable through historical inquiry. But political realities dictate that constitutional provisions of a certain type, of which the FMA is a striking example, tend not to have a single, original public meaning. It would certainly have been possible, as a textual matter, to draft the FMA unambiguously to allow, or preclude, civil unions. But had the FMA been so drafted, it would have been impossible, as a political matter, to enact it. The FMA serves as a uniquely compelling illustration of the proposition that, as a natural consequence of the constitution-making process, a constitutional provision addressing a deeply controversial subject can only hope to be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to disparate factions with divergent understandings of its terms.
Yet it is precisely that category of constitutional provisions--those involving the then- (as now-) controversial subjects of equality, fundamental rights, and expansive federal power--that engender the greatest fear of judicial overreaching. As such, originalism will usually fail to live up to its promise in the very cases to which that promise is most acutely directed. Whether they like it or not, judges are forced to look beyond the (nonexistent) original meaning in order to answer the constitutional questions that pose the greatest risk of "judicial activism."
From Part II:
[T]he FMA's opponents could rationally have expected that it might operate to ban civil unions because it was never rewritten to eliminate the ambiguity, despite the fact that it would have been simple to do so. Time and time again, critics of the ambiguous language proposed alternate phrasing that would have definitively and explicitly allowed civil unions. Yet the only revision that was ever made to the Amendment served only to give the illusion of increased clarity while in fact leaving the essential ambiguity in place. As Senator Warner lamented on the Senate floor, if the Amendment truly was intended to "leave to the several States the decision of whether to recognize relationships other than marriage, such as civil unions," then "why not simply state that in plain English . . . ?"
The answer to that question is the key to understanding the FMA. Saying so "in plain English" would have given the social conservatives no reason to hope that the Amendment would be interpreted to meet their goals, which would have caused them to abandon their support. The fact that the sponsors repeatedly refused to address the civil unions issue in plain English--the fact that they kept coming back again and again with the same proposal despite being fully aware of its profound ambiguity--surely made it reasonable for opponents to believe that the sponsors may have been up to something untoward. Or at the very least, it was not unreasonable for them to believe that the sponsors embraced the ambiguity as a necessary means of holding together a disparate coalition that had differing expectations about its application.
From Part III:
The "widely accepted theory that ambiguity enables compromise" is a "staple of public choice literature." This theory posits that ambiguity is often a natural result of the legislative process. Drafting text that can be read to support two or more inconsistent positions allows legislators and interest groups with divergent goals to join together to provide enough support to enact a law. Each group "hope[s] that its position will ultimately prevail, and ambiguity thereby expands the circle of winners in legislative battles, at least temporarily."
This theory holds especially true in constitutional law. The Constitution is particularly susceptible to this phenomenon because of the daunting supermajority required to enact or amend it. The greater the degree of agreement necessary in order to enact a potentially controversial law, the greater the degree of ambiguity necessary to achieve the requisite agreement. Those provisions of the Constitution that had little potential for controversy--either because of widespread political agreement or because their subject matter simply did not provoke the interest of the American people--may well have been drafted in concrete terms with a shared public meaning. But when it came to provisions that addressed high-profile issues on which the American people were not overwhelmingly of one mind, substantial ambiguity was unavoidable. The requirements of two-thirds support in both Houses of Congress and ratification in three-quarters of the states naturally push potentially controversial constitutional language in the direction of vague or ambiguous directives that mean very different things to the various groups with divergent interests that must join together to enact them.
In the case of the Federal Marriage Amendment, the ambiguity appears to have been the necessary result of the fact that the Amendment needed the support of two constituencies--moderate conservatives and social conservatives--with diametrically opposed viewpoints on the civil unions issue. Since Americans were roughly evenly divided into three camps--those who supported gay marriage, those who opposed gay marriage but supported civil unions, and those who opposed both gay marriage and civil unions--the only hope of obtaining supermajority support for a gay marriage ban was to phrase it in such an equivocal way that all gay marriage opponents (both those who supported civil unions and those who opposed them) could read it as adopting their position. It is this phenomenon that accounts for the textual ambiguity.
This phenomenon is hardly unique to the FMA. As for the original Constitution, Paul Finkelman explains that, on many occasions at the Philadelphia convention, "the delegates labored to create language that was not designed to clarify, but rather to obfuscate in order to confuse the electorate," because they "self-consciously believed that they had to hide what they were doing in order to win ratification." For instance, the use of vague language allowed the Northern delegates to tell their constituents that the Constitution did not support slavery and the Southern delegates to tell their constituents that it did. As for the Bill of Rights, Madison confessed that intentional ambiguity was the name of the game; he reported that in crafting the broad, open-ended language of the Bill of Rights "[e]very thing of a controvertible nature that might endanger the concurrence of two-thirds of each House and three-fourths of the States was studiously avoided." The people could all agree to support constitutional protection for the freedom of speech, for instance, only because the vague and lofty First Amendment does not clarify what that freedom entails. Had it attempted to do so, it could never have been enacted; the Framers did not agree on the proper scope of the freedom of speech and had widely divergent understandings of the meaning of the First Amendment. And finally, as for the Fourteenth Amendment, one Representative sarcastically said of the author of its textually amorphous rights provisions--Representative Bingham, whom Justice Black called "the Madison of the first section of the Fourteenth Amendment"--that the Amendment's "'euphony and indefiniteness of meaning were a charm to him.'" Issues of racial equality and of federal constraints on the states' ability to interfere with personal liberty were so touchy and divisive in the aftermath of the Civil War that an amendment written in concrete terms, rather than soaring and ambiguous platitudes, would never have stood a chance.
John Hart Ely has explained of American constitutionalism that "[o]ne of the reasons the debate culminates in a vote on an authoritative text is to generate a record of just what there was sufficient agreement on to gain [super]majority consent." But originalists are mistaken in assuming that the fact that there was a successful vote means that there was indeed agreement on the meaning of the text. In other words, there is serious reason to question the underlying premise of originalist thought that the "Constitution had to be drafted so as to be comprehensible to the public that must give effect and authority to it. In ratifying the document, the people appropriated it, giving its text the meaning that was publicly understood." When it came to controversial subjects, the constitutional language that emerged from the drafting process was generally capable of supporting more than one meaning, and the people were able to ratify it only because they did not agree on which of its possible meanings was correct.
Also from Part III:
But what about original, objective-public-meaning textualism? It appears to be targeted at avoiding precisely this objection. It does not care whether there was, in fact, a shared public meaning. It seeks only to determine the meaning that the public would have understood had it been fully educated (and not misled). Yes, objective-public-meaning textualism fails in interpreting the FMA, but could that be seen as the peculiar result of the fact that the FMA uniquely seeks to define a contentious term, unlike the rest of the Constitution, which uses settled terms to establish fixed law?
In a word, no. The Constitution is not composed entirely of settled terms with clear, objective meanings. Jefferson Powell has noted "the incredible linguistic creativity of the founders" and the "new and utterly non-standard uses the founders made of" language. Madison himself remarked that "no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas," and he explained that the inherent ambiguity of language is magnified by "the complexity and novelty of the objects defined" in the Constitution.
Original, objective-public-meaning textualism might well be successful in interpreting some of the more technical provisions of the Constitution. But it is the rights-bearing provisions--principally the Bill of Rights and the various clauses of Section 1 of the Fourteenth Amendment--that most concern originalists who worry about judicial activism. These are the most open-ended and textually vague provisions in the charter--the provisions that least lend themselves to a purely textualist interpretation. Looking up "due" and "process" in an eighteenth- or nineteenth-century dictionary is not likely to help ascertain the objective meaning of the Due Process Clauses, nor is a comprehensive analysis of how those words were typically used in contemporary discourse. "Due process," "equal protection of the law," "freedom of speech," "establishment of religion," "privileges and immunities," and the like are often terms of art whose content was defined, if at all, through practice and historical context. As such, their original objective meaning, to the extent that they ever had one, can be ascertained only by examining the historical evidence of the actual intent and understanding of the Framers and the public. The inquiry necessarily collapses back into an examination of the drafting history, the ratification debates, and the public discussion of the meaning and effect of the amendment. In other words, as prominent originalists Steven Calabresi and Saikrishna Prakash have explained, "everyone agrees" that "there is a range of genuine textual ambiguity about the original meaning" of the principal rights-bearing clauses, such that "the constitutional text, read alone, can give only incomplete answers as to the original understanding. The originalist inquiry, then, has usually been pushed back from purely textual arguments to arguments based on evidence from the Constitution's enactment and postenactment history."
It follows, as Caleb Nelson explains, that when the history fails to yield a single publicly shared understanding of constitutional meaning, the original objective-public-meaning textualist will usually be at a loss: "Most of the framers and ratifiers were smart people who were familiar with the art of reading and writing legal documents. If a significant number of them genuinely understood a constitutional provision in a certain way, they probably had some objective basis for their interpretation. When they were sharply divided about the best interpretation of some provision, one might therefore expect to find objectively reasonable arguments on both sides. Thus, in the very cases where divisions among the framers and ratifiers make the 'original [understanding]' indeterminate, the 'original meaning' is likely to be similarly indeterminate."
As such, however useful this methodology might be in interpreting other provisions of the Constitution, it falters in interpreting the very provisions that are the primary target of originalism's constraining promise.
And finally, from the Conclusion:
It is . . . a misconception of originalism that it necessarily promises (or that to succeed it must be able to produce) a conclusive answer to every constitutional question, wholly untainted by judicial discretion. No constitutional theory could be held to such a standard, and no sophisticated theorist would be arrogant enough to make such a promise. . . .
[W]hile these modern originalists have shown a great deal of humility in their thought, they can go only so far in making concessions to reality before originalism ceases to have any meaning. If originalists really mean to concede that their theory is profoundly limited and chronically indeterminate--such that most of the hard questions of constitutional interpretation will have to be resolved by reference to values other than those demonstrably memorialized in the text--then they have reneged on its promise. That is certainly something that the standard bearers of the originalist movement are unwilling to do. Judge Bork, for instance, insists that it will only be on "rare occasions" that a judge "cannot discover what a constitutional provision means." Justice Scalia similarly decrees that, for "the vast majority of questions," judges can indeed "find the correct historical answer." Even moderate originalists generally believe that the "Constitution is not radically indeterminate."
Indeed, if they believed otherwise, they wouldn't be originalists. To walk too far down the path of qualifying the promise of originalism is to abandon the entire premise of originalism--that the Constitution "has a fixed meaning ascertainable through the usual devices familiar to those learned in the law." The ability to "provide reasonably determinable answers" is "a sine qua non for originalism."
In fact, many originalists believe that if a judge cannot ascertain the original meaning of a constitutional provision, she should treat it like an "ink blot" on the Constitution, in Judge Bork's famous phrase. That is to say, if she cannot tell what the original framing supermajority decided, she must respect the will of the current majority that enacted the statute under review, rather than allow her own (unelected) will to undermine democracy. But if the original meaning of the most litigated provisions of the Constitution is consistently unknowable (indeed, nonexistent), then originalism is not a theory of judicial review at all; it is an abdication of judicial review. Judges cannot serve as an effective bulwark of individual liberty against the tyranny of the majority if they routinely decline to enforce virtually all constitutional rights. It is implicit in the mandate that "[i]t is emphatically the province and duty of the judicial department to say what the law is" that the answer cannot routinely be "we don't know."384
Footnote 384 provides:
To be sure, there may be some instances in which an honest originalist judge would be capable of deciding a case even under an ambiguous and controversial constitutional provision. Under the FMA, for instance, a state law granting "marriage" rights to same-sex couples would clearly be unconstitutional. But that is not because the FMA has a single original meaning; rather, it is because the same result is commanded under any of the competing understandings of its possible meaning. Whether one interprets the FMA to reserve only the word "marriage" to opposite-sex couples, or instead to reserve the entire institution of marriage to opposite-sex couples, it is violated by a statute that allows same-sex couples to "marry." Thus, an originalist judge could feel comfortable declaring that a same-sex marriage statute violates the original meaning of the FMA, even though she could not articulate just what that original meaning is. The same is surely true of paradigm cases under other vague rights-granting clauses. Under any plausible candidate for the original meaning of the Equal Protection Clause, it would surely be unconstitutional to fine African Americans for being black; under any plausible candidate for the original meaning of the Speech and Press Clauses, it would surely be unconstitutional to impose a prior restraint on the publication of anti-government newspaper editorials; et cetera.
But those are the easiest of the easy cases. If originalists are correct that "constitutional construction"—–the process of giving content to ambiguous constitutional provisions that lack a clear original meaning—–generally must be carried out by democratic institutions, not judges, see, e.g., Whittington, Constitutional Interpretation, supra note 274, at 204–08, and if I am correct that virtually all of the most litigated constitutional provisions lack an original meaning, then judges are limited to acting only in this lilliputian category of simple cases. Marbury, however, seems to presuppose that judges have a duty to determine and enforce the meaning of the Constitution in most cases--not just the easiest ones. (Indeed, the meaning of the constitutional provision at issue in Marbury itself was anything but clear. See William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 30–33.) Cf. Peter J. Smith, The Marshall Court and the Originalist’s Dilemma, 90 Minn. L. Rev. 612, 624 (2006) (arguing that "the ratification debates suggest something of a consensus (at least between warring Federalist and Anti-Federalist camps) that case-by-case adjudication in the courts would play a central role in assigning fixed constitutional meaning when the text of the Constitution was ambiguous"). And originalism, as I have noted, seems to presuppose the existence of a discoverable original meaning of virtually every constitutional provision.
As I stated in my original post, I highly recommend Colby's article. I should make it clear that my observations about the article are directed at its implications for original-public meaning originalism (roughly the version of contemporary originalist theory associated with New Originalists such as Balkin, Barnett, and Whittington and sometimes called "the New Originalism"). Like Colby, I believe that original intentions originalism suffers from deep problems, and unlike Colby, I do not believe that Gary Lawson's version of original public meaning originalism provides the best expression of the public-meaning variant of originalist theory. (I do believe that Lawson's work has been crucially important in the development of originalist theory.) My own views are stated in detail in Semantic Originalism.
With that caveat, let me offer the following additional observations about Colby's argument:
1. Colby's central argument about the Federal Marriage Amendment can be rested as follows: The FMA fails to resolve an essential ambiguity about the public meaning of marriage, and as a consequence, the public meaning of the FMA itself is ambiguous. In my earlier post, I argued that the possibility of this type of ambiguity does not establish that provisions in the actual constitution share this problem, but as the excerpts quoted establish, Colby does have an argument that the actual constitution contains "compromise" language, including language that is "vague" and language that is euphemistic with respect to slavery. I am particularly grateful to Colby for prompting this clarification--which in all fairness should have been made clear in my original post.
2. There is, however, a distinction between the particular kind of ambiguity that Colby observes with respect to the FMA and the other examples which he cites. One of the really nifty things about Colby's article is that he makes a fairly compelling case that the FMA reproduced the very ambiguity about the meaning of marriage that was at the heart of the social conflict that the FMA aimed to resolve. This is truly an important point, and its significance should not be lost. But I am doubtful that this particular feature of the FMA generalizes broadly to the provisions of the actual constitution--even the abstract clauses like "freedom of speech," "equal protection," and so forth. My doubt about generalizability is not based on a belief that almost all of the provisions of the actual constitution provide unambiguous bright-line rules that resolve almost all of the important constitutional disputes. Rather, my doubt is based the difference between the kind of constitutional imprecision that is typical of the actual provisions of the Constitution and the ambiguity in the FMA. Provisions like the free speech clause, the equal protection clause, and the grants of executive, legislative, and judicial power in the first three articles of the United States Constitution are certainly vague, and they may contain ambiguities, but insofar as I can discern, they do not share the particular form of ambiguity that Colby identifies in the FMA.
3. The difference between vagueness and ambuity is important for a variety of reasons--some specific to the generalizability of Colby's argument about the FMA and some that are more general in nature.
A. Let's first make the distinction clear, and then elucidate the reasons for its importance:
Ambiguity--a word or phrase is vague if it has more than one sense. For example, "cool" is ambiguous, because it can refer to low temperature, hipness, or the emotional quality of being calm in the face of danger or provocation.
Vagueness--a word or phrase is vague if it admits of borderline cases. For example, "tall" is vague, because there is no bright line than demarcates the tall from the non-tall. Adult males are surely tall if they exceed 7 feet, and they are surely not tall if they are shorter than 5 feet, but there is no precise line that seperates those who are tall from those who are not.
B. Many of the most debated provisions of the Constitution are vague. Indeed, they are debated precisely because they are vague. As Colby observes, in some cases, vague language may have been chosen deliberately in order to postpone resolution of a politically contentious issue. In other cases, the use of vague language may reflect a deliberate decision to establish a general framework that can be adapted to changing circumstance.
C. But vagueness is not the same as ambiguity, and the two linguistic phenomena have very different implications for constitutional theory. The constitution establishes a general framework for government, and it is hardly surprising that such a framework cannot be established without resort to vague, abstract, and general language. For example, there may be no conceivable provision that could provide a bright-line rule that demarcates executive, legislative, and judicial power. The lines between the three powers may necessarily be vague--at least in the absence of a very long and detailed constitutional code.
D. The example of the FMA is fascinating, because (assuming Colby is right about the linguistic facts) it represents a very particular sort of ambiguity--where a proposed constitutional amendment was worded so as to avoid the resolution of a the very conflict that the provision was intended to address. If this pattern were pervasive throughout the actual constitution, then "original public meaning" would only narrow the range of alternatives, and the alternatives it left open would be precisely those that were in need of constitutional settlement. This would give rise to substantial problems for constitutional theorists of various sorts, including some originalists.
E. But so far as I can tell, Colby's arguments do not establish that FMA-type ambiguity is pervasive in the original constitution. Indeed, I believe that Colby does not establish any examples of this particular type of ambiguity other than the FMA itself. Colby does assert that the FMA is "a striking example" of "constitutional provisions of a certain type," but his examples, e.g. the broad power-conferring provisions, are best explained as examples of vagueness, and Colby does not have an argument that they exhibit FMA-type ambiguity. He does have examples of political compromise, e.g. slavery, but in that case the constitutional text is euphemistic in order to avoid any explicit endorsement of (or opposition to) slavery. The provisions of the Constitution of 1789 that entrenched slavery are conventionally understood as creating rules of constitutional law that did unambiguously apply to slavery. (But Colby might want to consider Lysander Spooner's arguments to the contrary.) When it comes to the freedom of speech, Colby himself characterizes it as "vague" rather than "ambiguous."
F. And the following passage from Colby's article (also quoted above) suggests that it is vagueness (and open-texture, a species of vagueness) that is typical of the constitution:
Original, objective-public-meaning textualism might well be successful in interpreting some of the more technical provisions of the Constitution. But it is the rights-bearing provisions--principally the Bill of Rights and the various clauses of Section 1 of the Fourteenth Amendment--that most concern originalists who worry about judicial activism. These are the most open-ended and textually vague provisions in the charter--the provisions that least lend themselves to a purely textualist interpretation.
4. The distinction between vagueness and ambiguity is important when evaluating the implications of Colby's argument for original public meaning originalism (or "the New Originalism") in its most plausible form.
A. The New Originalism characteristically embraces the distinction between interpretation and construction, where:
Constitutional Interpretation is the activity that determines the linguistic meaning or semantic content of the constitutional text, and
Constitutional Construction is the activity that provides supplementary rules of constitutional law, where the linguistic meaning does not resolve the constitutional issue faced by a constitutional actor (judge, other official, or citizen).
When a constitutional word or phrase is vague, it does not follow that the text lacks meaning; rather, the original public meaning of the text is vague, and therefore requires construction. Notice, however, that the construction vague language is not the equivalent of the construction of no language at all. Even when the constitutional provisions contain substantial vagueness, there will be cases in the "core" (where the provision clearly applies) and cases that are clearly excluded (where the provision clearly does not apply) in addition to the penumbra (to use H.L.A. Hart's famous metaphor). New Originalists like Balkin, Barnett, and Whittington explicitly embrace the proposition that vague constitutional language requires constitutional construction. By definition, a theory of constitutional construction is not a theory of original public meaning, and different originalists have offered different theories of construction. For example, Whittington emphasizes the role of politics; Barnett argues for constructions guided by a theory of constitutional legitimacy; Balkin suggests the use of the method of "text and principle."
B. As applied to these originalist theorists, Colby's notion of "a purely textualist interpretation" is not well formulated. If by "a purely textualist interpretation," Colby means resolution of a constitutional issue by interpretation alone (where "interpretation" is distinguished from "construction), then Colby is right, but he simply reiterating the position of the New Originalists themselves. There is no such thing as a "purely textualist interpretation" of a provision which includes vague language.
C. What then is Colby's position on the actual position on these issues taken by the most plausible version of contemporary originalist theory? Colby only mentions the New Originalist notion of "construction" once in the essay--in footnote 384 quoted in full above. His argument is directed soley at Whittington's theory of construction:
If originalists are correct that "constitutional construction"—–the process of giving content to ambiguous constitutional provisions that lack a clear original meaning—–generally must be carried out by democratic institutions, not judges, see, e.g., Whittington, Constitutional Interpretation, supra note 274, at 204–08, and if I am correct that virtually all of the most litigated constitutional provisions lack an original meaning, then judges are limited to acting only in this lilliputian category of simple cases.
As applied to Whittington, Colby's argument does not go through for two reasons:
1. Colby's characterization of the implications of his argument is not supported by the warrants he offers. Colby claims that he has established that "most litigated constitutional provisions lack an original meaning," when in fact he has established that the original meaning of these provisions is vague.
2. This does not entail, even on Whittington's view, that the judicial branch must abstain from all cases involving these provisions. Instead, Whittington's theory suggests that judges should defer to the political branches when the case at hand falls into the "construction zone"--that is, the penumbra or area of underdeterminacy.
D. Moreover, Colby does not consider alternative approaches to constitutional construction, including Barnett's theory of construction constrained by constitutional legitimacy and Balkin's method of text and principle. Neither Barnett nor Balkin would endorse Whittington's principle of deference to the political branches as a general and invariant rule of constitutional construction.
E. Colby's failure to consider some of the most sophisticated forms of contemporary originalism on this issue is particularly significant when juxtaposed with the limited implications of the Federal Marriage Amendment for the interpretation of the provisions of the actual Constitution. As I argued in my original post, the possibility of the special type of ambiguity that Colby attributes to the FMA does not establish the likelihood that this type of ambiguity is characteristic of other constitutional provisions. Colby is right that there are many other provisions of the Constitution that do not provide bright line rules but are instead vague and hence require construction. But that conclusion is explicitly endorsed by sophisticated originalists (including Whittington). The bottom line is that Colby's article fails to establish a criticism of what (at least in my opinion) is the best and most sophisticated form of originalism.
5. But my disagreement with Colby's argument against originalism should not obscure the real value of Colby's article as an important contribution to the literature on originalism. That contribution includes the following two aspects:
A. Colby's argument may apply with special force to original intentions originalism--a version of originalist theory that I believe is unsustainable for a variety of reasons.
B. Colby's argument establishes the possibility that some provisions of the constitution may contain what I have called "residual ambiguities"--that is, ambiguities that cannot be resolved by resort to the linguistic facts that establish conventional semantic meaning and the publicly available context of constitutional utterance. Notice that Colby's argument would suffice to establish that residual ambiguity is possible--even if Colby were wrong about the linguistic facts with respect to the FMA. Originalist theory must take this possibility into account. One possible response would be to embrace the conclusion that such provisions are meaningless, but another possibility (and the one that I believe is correct) would be to acknowledge that residual ambiguity requires constitutional construction.
After sharing a preliminary draft of this post with Colby, he offered the following comments:
The distinction between vagueness and ambiguity is a useful one, and I wish that I had focused on it more in the article. You are right to point out that the article would have been better for doing so. But in the end, I don't think that the distinction matters as much as your post suggests--especially not for the argument that I am making in the article, which seeks to refute a particular promise made by many originalists.
It matters little whether the framers chose to smooth over insurmountable political differences through ambiguous language or through vague language. Either way, the project of resolving the indeterminacy (picking sides in the culture wars, as it were) falls to subsequent actors.
If the "construction" of both vague and ambiguous constitutional provisions must be done by democratic institutions, rather than judges (at least when the question falls within the zone of indeterminacy---which on my reading all of the interesting and contentious questions do), then my point is the same for both forms of indeterminacy: given the public choice realities explored in the article, originalism entails a virtual abdication of judicial review.
In its typical forms, originalism is implicitly (and sometimes explicitly) grounded in the notion that most constitutional questions can be resolved by reference to the discoverable original meaning of the Constitution. If it is routinely the case that there never was an original meaning capable of resolving the real questions of constitutional law (either because the original meaning is entirely nonexistent, or because it is too vague to do any meaningful work), then originalism, as a theory of judicial review, doesn't work.
You are quite right to note that some sophisticated originalists do not agree that judges should get out of the business of construction. But with today's strict law review page limits one has to pick one's battles. My sense is strongly that the "mainstream" of originalists agree with Whittington.
The point of my article was to try to show the falsity of originalism's promise to be a functional jurisprudence that is able to avoid the risk of subjective judging undermining democracy. My quarrel is much more with Scalia and Thomas and Bork (and Bush et al.), who make that promise, than with Balkin and Barnett, who do not (at least not nearly to the same degree). As I note near the end of the paper, "To be sure, although the most famous and most influential originalists emphatically make the promise that this Article has sought to discredit, not all originalists have joined them." If I am able to undermine the power of overwrought Scalian and Borkean rhetoric, then I have succeeded. Whatever differences I have with Balkin and Barnett (and you), they pale in comparison to the differences that I have with Scalia and Bork! (Indeed, my own views may be quite similar to Balkin's. I am in the very early stages of working out a theory of "soft originalism.")
Let me raise two issues before we close. First, in my opinion, the assertion that "the 'mainstream' of originalists agree with Whittington" on constitutional construction is problemantic because it suffers from a conceptual confusion--at least insofar as it is meant to define the scope of issues in debates about originalism. As Whittington himself argues, theories of constitutional construction cannot be determined by the original public meaning of the constitutional text. For this reason, views about "constitutional construction" cannot define the mainstream of originalist theory--they address issues that originalist theory is incapable of resolving. The core of originalism is an agreement on the fixation thesis--the claim that the linguistic meaning of a constitutional provision is fixed at the time it is written and ratified.
Second, jurisprudential debates have a way of repeating themselves, and recent debates about constitutional meaning bear strong resemblences to debates about legal indetermnacy in the 1980s. When confronted with "easy cases," defenders of the indeterminacy thesis modified their claim by arguing for what we might call the important-case indeterminacy thesis--the claim that the law does not determine the result of the politically important cases. In his reply, Colby joins other recent critics of originalism by arguing that the original meaning does not constrain judges in important constitutional cases. But consider the following:
1. For the important-case indeterminacy thesis to have critical bite, there must be criteria for importance that are independent of indeterminacy. Why? One of the ways in which we identify important constitutional cases is by looking for issues that fall within the construction zone--the area where there is room for alternative constructions of vague language. Because constitutional scholars tend to focus on the construction zone, they could easily be misled by selection bias. Constitutional scholars work on important cases where the law is indeterminate: fallaciously, they conclude that all important cases are indeterminate. (A fuller version of this argument can be found in my On the Indeterminacy Crisis: Critiquing Critical Dogma.)
2. But in fact, the text of the constitution settles a wide variety of important cases that are outside the construction zone and constrains outcomes inside the zone. As Sandy Levinson has demonstrated in Our Undemocratic Constitution, the most significant constitutional issues are settled by the "hard wired" provisions of the Constitution that establish the basic structure of the American constitutional order. Levinson's examples include equal sufferage for states in the Senate and the Article V amendment process, but our constitutional history is repleat with examples, from prohibition and its repeal to the abolition of slavery and the right to vote for women. Once we avert our gaze from the Supreme Court, the claim that the constitutional text does not settle important issues of constitutional law begins to look absurd. These arguments are elaborated in Semantic Originalism.
3. Even in cases where some of the issues lie within the construction zone, it is simply not the case that the constitutional text does none of the work. The Supreme Court's decision in District of Columbia v. Heller provides an important example. Assuming (arguendo) that that Scalia's view of the original public meaning of the operative clause is correct, then the text of the Second Amendment settles an important range of cases (involving handgun bans), but leaves open a substantial construction zone (for the determination of which handgun regulations constitute "infringement" and what are the outer limits of the "right to keep and bear arms"). That is, the original public meaning of even the most abstract and vague clauses (e.g., the grants of legislative, judicial, and executive power) define the dimensions of the construction zone. But having said this, let me indicate agreement with Colby on the question whether "original public meaning" alone provides sufficient constraint to avoid politicization of the Supreme Court--it does not. And for that reason, I have argued that a strong doctrine of constitutional stare decisis is required, see The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights.
Let me conclude by reaffirming the injunction with which I closed by original post: Read Colby!
