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Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction

Evan Bernick December 19, 2016
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Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases?

In recent years, many (though not all) originalists have embraced the use of constitutional constructions—implementing doctrines that are designed to give legal effect to the Constitution in settings where interpretation of the text does not yield a single answer. Originalists who accept the distinction between interpretation (ascertaining the meaning of the text) and construction (giving that text legal effect) generally agree that judges cannot develop rules of construction that contradict the Constitution’s text—but no systematic effort has yet been made to establish the contours of permissible judicial activity within a “construction zone” that might be quite vast, depending upon how many constitutional questions cannot be resolved by interpreting the text.

As abstract as all of this might sound, the underlying problem is of immense practical importance. What judges do in textually unclear cases has real-world implications for ordinary Americans who are confronted with assertions of government power that they believe to be unconstitutional. Those who believe that originalism holds the promise of maintaining the rule of law set forth in “this Constitution” and securing individual rights must develop a framework that equips judges to resolve such cases.

As Professor Randy Barnett and I will argue in a forthcoming paper, judges who draw their power from “this Constitution” and publicly promise to adhere to it are legally bound to act consistently with not only the letter of the Constitution—its text—but its spirit—the function of its particular provisions, as ascertained by study of the publicly accessible context in which those provisions were framed and ratified. They are duty-bound to exercise the discretionary power delegated to them in good faith—to seek to give effect to the law of the land rather than seeking to impose their own extralegal beliefs or desires. Where the letter of the law does not yield a clear answer, they must have recourse to the spirit of the law in formulating rules of construction.

What does good-faith construction look like in practice? Consider a recent decision by a panel of the D.C. Circuit Court of Appeals. In PHH Corp. v. Consumer Financial Protection Bureau, a divided panel held that the structure of the Consumer Financial Protection Bureau (CFPB) violated Article II, which vests “[t]he executive power” exclusively in “a President of the United States of America.” Writing for the panel majority, Judge Brett Kavanaugh examined the function of the separation of legislative, executive, and judicial powers in our constitutional system. He explained that by delegating different kinds of power to specialized branches of government, the Framers ensured that no branch could attack individual liberty unopposed. The vesting of executive power in the President was designed in part “[t]o ensure accountability for the exercise of executive power, and [thus to] help safeguard liberty.” Of course, the President must rely upon subordinate officers to carry our laws into execution—but he must be able to supervise and direct those officers.

Notwithstanding the letter of Article II, the Supreme Court in Humphrey’s Executor v. United States (1935) upheld the constitutional legitimacy of independent executive agencies whose heads are removable by the President only for cause, not at will, and therefore are not supervised or directed by the President. These agencies wield consolidated legislative, executive, and judicial powers—to issue general rules that bind members of the public, to enforce those rules, and to adjudicate cases involving alleged violations of those rules.

But Humphreys Executor involved an agency headed by multiple officials. The CFPB is a unique entity—an independent agency headed by a single director who (as summarized by Judge Kavanaugh) “unilaterally enforces 19 federal consumer protection statutes covering everything from home finance to student loans to credit cards to banking practices . . . [and] alone decides what rules to issue; how to enforce, when to enforce, and against whom to enforce the law; and what sanctions and penalties to impose on violators of the law.”

Judge Kavanaugh recognized that Humphreys Executor foreclosed a conclusion that the structure of the CFPB violated Article II simply because the CFPB is an independent agency with consolidated powers and is not directly accountable to the President. He responded by formulating a construction, informed by the spirit of the clause he was giving effect to: Independent agencies may not be headed by a single person.

In an opinion that exemplifies the virtues of context-sensitive judicial engagement, Kavanaugh explained why the dangers of consolidated, unaccountable power—dangers that the Framers sought to safeguard Americans against by vesting all executive power in the President—are particularly pronounced where an agency that wields such power is headed only by a single person. Having agencies headed by multiple members, wrote Kavanaugh, serves as a surrogate safeguard against the dangers that independent agencies present. It protects individuals by “requiring the assent of a majority of commissioners to take significant action” against any individual; promotes deliberation by allowing the “costs and downsides of proposed decisions [to] be more fully ventilated”; mitigates the risk of “extreme, idiosyncratic, or otherwise off the rails” decisions; enables better monitoring of agency decision-making; and protects agencies “against ‘capture’… by regulated entities or interest groups,” it being easier to pressure a single person to act for the benefit of private interests rather than any public end than to pressure multiple people to do the same. The panel concluded by stating that the CFPB may remain in existence, “but the President now will have the power to remove the Director at will, and to supervise and direct the Director.”

Judge Kavanaugh’s analysis provides a blueprint for judges who confront uncertainty concerning constitutional questions—whether that uncertainty is manufactured by erroneous but controlling precedent, insusceptible of resolution despite judges’ best efforts, or a byproduct of the inherent imprecision of language. As Founding-era judges recognized, the spirit of the law is no less a component of the law than the letter. Recourse to the spirit is not a departure from the law—it is a means of giving effect to the law, as best one can. Where the letter gives out, the law does not—and neither does judicial duty. Good-faith construction equips judges to discharge their duty.  

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