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Lawrence B. Solum
would that principle come from? It is not stated in the constitutional text, nor
is it logically implied by the text.
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However, particular parts of the Constitution may support contextual
enrichments that are inconsistent with extra-textual fundamental law. For
example, Article I, Section Eight enumerates the powers of Congress. The
Necessary and Proper Clause negates the inference that only the enumer-
ated powers may be exercised, but it also suggests that unenumerated powers
must bear the right kind of relationship to the powers enumerated in Section
Eight or elsewhere in the Constitution. It might be argued that the combina-
tion of enumeration with the requirements of necessity and propriety create
a presupposition that rules out constitutional doctrines based on freestanding
legislative power derived from some background theory of the powers that
governments ought to have.
However, the Necessary and Proper Clause also refers to the powers of “the
government of the United States” – and John Mikhail has argued that this fea-
ture presupposes a set of unenumerated powers.
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Richard Primus has made
a different argument against what he calls the “internal-limits canon.”
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From
an originalist perspective, the question is whether the unenumerated powers
can be connected to the constitutional text via contextual enrichment. If a
connection can be made, originalists ought to accept the extra-textual powers,
but most originalists will reject powers that are truly freestanding – with no
connection to the text at all.
Some originalists may believe that extra-textual fundamental law is obvi-
ously contrary to the normative basis for the Constraint Principle. For exam-
ple, if one affirms the Constraint Principle because one believes that judges
are untrustworthy, and hence should be constrained by the constitutional
text, one will be likely to adopt a rule that prohibits judicial recognition and
enforcement of extra-textual fundamental law. But this rule itself is not stated
in the text. It might be a construction derived from the phrase “judicial power,”
or it might itself be derived from a freestanding principle of political morality.
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This can easily be demonstrated. Add an extra-textual fundamental law clause to the Consti-
tution. The new provision does not contradict or invalidate any of the communicative content
of the constitutional text. It follows that the negation of the imaginary provision is not implied
by the communicative content of the actual text.
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See John Mikhail, “The Necessary and Proper Clauses” (2014) 102 Georgetown Law Journal
1045 (“[u]nless it is treated as surplusage, this second clause indicates that the Constitution
vests powers in the Government of the United States that are not merely identical or coexten-
sive with the powers vested in Congress or other Departments or Officers of the United States.
Because these additional powers are not specified or enumerated in the Constitution, they
must be understood to be implied or unenumerated powers.”).
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Richard Primus, “The Limits of Enumeration” (2014) 124 Yale Law Journal 576.
Originalism and the Invisible Constitution
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On the other hand, if one’s justification for the Constraint Principle were
based on a theory of natural rights combined with an argument that public
meaning originalism provided for the best institutional structure for the pro-
tection of such rights then one might believe that a natural-rights version of
extra-textual fundamental law is consistent with originalism.
The word “originalism” is a neologism coined by Paul Brest to describe a
constitutional theory that he opposed.
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Some originalists may believe that
the spirit of originalism is fundamentally inconsistent with the notion of
freestanding extra-textual fundamental law, and hence should not be called
“originalist.” Other originalists may insist, with equal fervor, that natural-rights
extra-textual fundamental law is at the core of the original meaning of the
Constitution. Once we recognize that “originalism” is a stipulated theory
term, it becomes clear that there is no truth of the matter in this debate. The
best we can do is to be clear about the meaning of our stipulated theoreti-
cal language. My own view is that any constitutional theory that affirms the
Fixation Thesis and the Constraint Principle is properly called “originalist.”
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