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Originalism and the Invisible Constitution
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here for the purposes of illustration; I am not advancing either of these two
approaches as the correct interpretation of the constitutional text.
The first approach is based on the hypothesis that the public meaning of
“the freedom of speech” involves a division of linguistic labor. On this hypoth-
esis, “the freedom of speech” refers to a preexisting legal doctrine. For exam-
ple, it might have been the case that “the freedom of speech” referred to a rule
against prior restraints. On this interpretation, the determination of the full
communicative content of “the freedom of speech” would require the consul-
tation of extra-textual legal sources known to the American lawyers of the late
eighteenth century, for example, Blackstone’s Commentaries.
37
The second approach is based on the hypothesis that the public meaning
of “the freedom of speech” involved a concept of political philosophy, which
we might call “the freedom of expression.” Hypothetically, let us postulate
that the public in 1791 would have understood the freedom of expression as a
general concept of political philosophy. Determining the content of the con-
cept might require us to consult extra-textual sources, perhaps the political
philosophy of John Locke.
3.5.2.3. The Role of Justifications for Originalism
in Constitutional Construction
This chapter does not explore the justifications for originalism. Rather, on this
occasion, I am simply assuming an originalist perspective (with public mean-
ing originalism as the model version). But when it comes to originalist theo-
ries of constitutional construction, the underlying justification for originalism
will make a difference. Theoretical consistency will demand that the original-
ist theory of constitutional construction cohere with the underlying normative
justification for the Constraint Principle. If the Constraint Principle is justi-
fied by an account of popular sovereignty, then the theory of constitutional
construction must be consistent with popular sovereignty (considering other
relevant political values). If the Constraint Principle is justified by rule-of-law
considerations, then the theory of constitutional construction must be con-
sistent with the rule of law (or departures must be justified by other salient
political values).
Thus, the requirement of theoretical consistency has implications for the
way in which originalist theories treat the various categories of extra-textual
sources. If the Constraint Principle is justified by rule of law considerations
37
William Blackstone, Commentaries on the Laws of England vol. IV (Boston, MA: Beacon
Press, 1962), 158.
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Lawrence B. Solum
and a distrust of the institutional capacity of judges to make objective, morally
correct decisions, then the theory of constitutional construction would do well
to avoid a reliance on the judges’ own beliefs about political morality. If the
Constraint Principle is justified by popular sovereignty theory, then it might
follow that the social norms and values of “We the People” today should play a
role in constitutional construction; for example, a default rule favoring defer-
ence to legislative choices might be justified on popular sovereignty grounds.
The point is that something outside the text – the justifications for
constraint – will play a role in constitutional construction when the text
underdetermines legal content.
3.5.2.4. Extra-textual Sources of Constitutional Norms
Not Bound to the Text
We have just considered the possibility that extra-textual sources might be
used to flesh out the content of constitutional constructions that are bound
to the text. But it is at least theoretically possible that there might be consti-
tutional constructions that are “unbound” – that cannot be connected to the
zone of underdetermination created by a particular clause or to the structure
of the Constitution as a whole or in part.
To illustrate this idea, we can pursue a counterfactual hypothetical. Suppose
that the Constitution had absolutely nothing to say about unenumerated rights.
Imagine, for example, that the Ninth Amendment had not been ratified, and
that the Fourteenth Amendment did not contain any provision with commu-
nicative content that provides a textual basis for unenumerated rights. (Suppose,
for example, the Fourteenth Amendment had not included the Privileges or
Immunities Clause.) Could originalists nonetheless endorse constitutional
constructions that created judicially enforceable unenumerated rights?
The answer to this question will depend on the content of the particu-
lar version of originalism. Consider the version of the Constraint Principle
formulated previously as part of Constraint as Consistency. Recall the third
requirement:
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