ined here is historical practice by the political branches. How should original-
guishing the role of historical practice in interpretation and construction.
Consider first the role of historical practice in constitutional interpretation.
text. Direct evidence of communicative content comes from two sources: (1)
evidence of linguistic facts that establish conventional semantic meaning, syn-
of constitutional communication. Post-ratification practice by the executive
and legislative branches does not provide direct evidence. Such practices are
Randy E. Barnett, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism” (2006) 75
Originalism and the Invisible Constitution
107
not linguistic facts. And post-ratification practice cannot be part of the pub-
licly available context of communication because such practices occur after
the communicative acts (framing and ratification) have occurred.
Nonetheless, historical practice can provide indirect evidence of original
meaning. Suppose that known linguistic facts underdetermine the meaning
of a constitutional provision. A typical case of such underdeterminacy might
be ambiguity. A word or phrase in the Constitution could have two (or more)
semantic meanings. The first Congress legislates in a way that is consistent
with one of the alternatives, but not the other. One might infer that Congress’
action provides evidence in favor of the interpretation that is consistent with
the constitutionality of the legislation. Of course, this evidence is not decisive –
after all, Congress (even the first Congress with members who attended the
Philadelphia Convention and various ratifying conventions) could be mis-
taken – or Congress could have failed to recognize the issue, or deliberately
violated the Constitution. Nonetheless, early historical practice provides evi-
dence relevant to the resolution of the ambiguity.
How should originalists regard the use of historical practice in constitu-
tional construction? Originalists are committed to the Constraint Principle.
When the meaning of the text is clear and relevant, originalists will adopt
a construction that aligns the legal content of constitutional doctrine with
the communicative content of the constitutional text. But in the construc-
tion zone, there may be more than one constitutional doctrine permitted by a
vague or irreducibly ambiguous text. So, originalists can accept the use of his-
torical practice to liquidate constitutional meaning in the construction zone.
78
Originalists can embrace a role for historical practice in constitutional con-
struction. Should they do so? Once again, this is a complex question and
different originalists may approach it differently. Originalists whose normative
concerns focus on the rule of law and judicial constraint may welcome his-
torical practice arguments – as they provide a basis for settling constitutional
questions. Settlement serves the rule of law values of stability, certainty, and
predictability. Settlement also serves the function of constraining judges by
providing a basis for decision that does not require judges to make first-order
normative judgments about the political morality of the settled institutional
arrangements.
Other originalists may argue that historical practices should play a modest
role because they envision a greater role for normative concerns in the con-
struction zone. And yet other originalists may believe that judges should gener-
ally defer to the political branches in the construction zone: these originalists
78
See Amar, Supra note 6, 335.