See Williams, Supra note 47.
Originalism and the Invisible Constitution
93
Having gotten this far, there is a further question. What is the content of
the retained rights? Immediately, we see a problem. The constitutional pre-
supposition is that there are retained rights, but this presupposition does not
tell us what the content of the rights might be. Of course, it is possible that
the publicly available context of constitutional communication provides suf-
ficient information to give shape to that content. For example, if that context
included widespread public agreement on a theory of natural rights such that
competent speakers of American English immersed in the political culture
would understand that “retained rights” were natural rights, then the pub-
licly shared theory of natural rights might liquidate a substantial amount of
the uncertainty created by the presupposition. Similarly, if the shared culture
included agreement on theories of popular sovereignty or of federalism, then
one of those theories might provide content to the presupposition. Many of
the debates about the meaning of the Ninth Amendment should be under-
stood as debates about the content of the publicly available context of consti-
tutional communication.
Suppose, however, that the publicly available context included competing
and only partially articulate views about natural rights, popular sovereignty,
and federalism. In that case, the content of the constitutional presupposition
from the Ninth Amendment might be irreducibly uncertain. Operationally, this
would be the case if significant numbers of competent readers aware of the pub-
lic context would draw substantially different inferences about the content of the
constitutional presupposition; similarly, irreducible uncertainty would result if
many competent readers would be undecided about the content of the impli-
cature. Such irreducible ambiguity would require constitutional construction.
But that is not the end of the story. It might be that the irreducible uncer-
tainty is only partial. Consider the following example. The First Amendment
begins, “Congress shall pass no law” and hence one might conclude that the
“freedom of speech” binds only Congress – leaving the executive and judicial
branches unrestrained. But the Ninth Amendment juxtaposed with the First
Amendment and publicly available context of constitutional communication
may give rise to a presupposition that the freedom of speech constrains action
by the executive and judicial branches. Even if there was uncertainty about
the full content of the presupposed “retained rights,” there might be sufficient
clarity with respect to a subset of those rights.
This is simply one example of a more general phenomenon – irreducible
uncertainty in the content of constitutional enrichments can be partial or total.
If it is partial, then the Constraint Principle suggests that originalists should
honor that portion of the enrichment that does have ascertainable content.
94
Lawrence B. Solum
3.6.5. Extra-textual Constructions of Written Clauses
The Ninth Amendment is difficult, but there are much easier cases. Some
provisions of the Constitution seem to have open-textured communicative
content. For example, the clauses that vest “executive,” “legislative,” and
“judicial power” may be open-textured in this way. Of course, open-textured
semantic content may become relatively more determinate once context is
considered, but for many constitutional provisions, it seems likely that a sub-
stantial construction zone will remain after contextual disambiguation.
Different versions of originalism can embrace different theories of constitu-
tional construction so long as those theories are consistent with the Fixation
Thesis and the Constraint Principle – the unifying principles (or core) of orig-
inalism. Some originalists may adopt theories of construction that maximize
the authority of the political branches; for example, they might adopt a gen-
eral rule of construction that calls for judges to defer to the political branches
in the construction zone. Other originalists might look to the judicial practice
of the Founding Era; the theory that is called “original methods originalism”
could serve this purpose.
51
And another group of originalists might look to
multiple modalities of constitutional argument, including text, history, struc-
ture, precedent, “ethos” of the American social order, and prudence.
52
The
content of any particular originalist theory of construction will depend on
the underlying normative justification that theory gives for the Constraint
Principle, as well as a variety of other factors.
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