Constitutional Ambiguities and Originalism: Lessons from the Spending Power

Abstract:     
Proponents of originalism typically acknowledge that some constitutional provisions are ambiguous. No originalist consensus has yet emerged, however, for how a court should proceed in such cases. Some originalists are comfortable permitting courts to announce a determinate meaning for such constitutional provisions, but offer the courts no guidance for how to undertake that project with appropriate (the greatest possible?) fidelity to the Constitution. Other originalists have instructed the courts to uphold legislation challenged as violating an ambiguous constitutional provision. None among this latter group of scholars has provided a sustained explanation for their common prescription, however; each has merely invoked “majoritarianism” by way of justification and support.

In this Article, I propose a new canon of interpretation (with a corollary) for courts confronting ambiguities in the United States Constitution. I argue that this approach to ambiguities is of greater fidelity to the Constitution than the “majoritarian” prescription offered by some originalists. In addition, I explain why advocates of a “living Constitution” and proponents of “exclusive originalism” should all be eager to embrace the proposed canon. The proposed canon is that, when choosing among plausible interpretations of an ambiguous constitutional provision, the Court should choose the interpretation favored by (or most likely to benefit) the party that is less likely, as a matter of logical possibility, to be able to obtain a constitutional amendment to “correct” the Court’s interpretation. The canon, and its justification, are both informed by our nation’s history and experience with the (indisputably ambiguous) Spending Clause of Article I, but neither is in any way limited to that constitutional provision.

The Article begins with a critical analysis of the existing positions taken, and prescriptions offered, by originalist scholars who have discussed the problem of constitutional ambiguities. The remainder of the Article discusses the Spending Clause as an example of how the proposed canon and its corollary would operate, and the benefits to be gained from these particular second-order rules of interpretation.

Accepted Paper Series