John O. McGinnis
84 Geo. Wash. L. Rev. 843
This Article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. The best categorization of this duty of clarity is that it was an aspect of the judicial power granted under Article III of the Constitution. But judges were also expected as part of their duty to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.
Thus, this Article rejects James Bradley Thayer’s famous form of radical judicial deference—that legislation should be upheld on the basis of any interpretation that could be embraced by “a rational person”—as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands. As a result, Thayer’s concept of constitutional deference does not accord with the concept of judicial duty reflected in the meaning of judicial power.
The judicial duty of clarity also suggests that the judiciary can engage only in interpretation, not construction during the course of judicial review. According to many New Originalists, construction can take place when a provision is unclear, but the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution. In short, if a central thesis of these New Originalists—that interpretation runs out when a provision is irreducibly ambiguous or vague—is accurate, it is the legislature rather than the judiciary that can construct the constitutional order when the meaning of the Constitution is unclear. The judiciary’s role in the course of judicial review is thus confined to interpreting the Constitution. That is an important role, but one circumscribed by its duty under law.
