Vol. 107 Issue 1

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.

Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text).

Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implement-ing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences.

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution, the vindication of which requires more than compliance with legal rules: federal elected officials must also secure the American conception of democracy as collective self-governance and create a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and com-promise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. The final Part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

Contracts are formed via language, yet scholars and practitioners alike often ignore the fundamentally linguistic nature of offer and acceptance. Moreover, even those who have written about the intersection of linguistics and contracts have not used the most useful model for under-standing speech. Thus, this Note seeks to introduce linguist Roman Jakobson’s speech act model as a method of analyzing contract formation. Whereas previous scholarship has applied J.L. Austin’s and John R. Searle’s work on speech act theory, this Note demonstrates why Jakobson’s model better accounts for the dynamic linguistic actions of offer and acceptance. It provides those who must decide whether a con-tract has been formed—namely, judges—a tool for applying the reasonable person standard in a particular linguistic context.

Actuarial recidivism risk assessments—statistical predictions of the likelihood of future criminal behavior—drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understand-able. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing. In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone. Nevertheless, that is precisely how those who endorse actuarial sentencing—including the American Law Institute in the recently revised Model Penal Code for Sentencing—suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information. This Article reexamines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences. Specifically, it contends that this practice distorts, rather than refines, sentencing decisions. Moreover, it may increase reliance on incarceration— and it may do so for reasons that undermine the fairness and integrity of the criminal justice system.

The goal of this Note is not to state what we must do in regard to these questions, but only what we should do if we are attempting to adhere to either of the two democratic theories of representation suggested by the one-person, one-vote principle from Reynolds v. Sims. This Note addresses the current state of the law and the Census, and analyzes the two democratic theories of representation: Voter Equality and Representational Equality. This Note argues that the current regime of counting prisoners does not successfully adhere to either of the two theories, and that counting prisoners in their pre-incarceration address, although imperfect, adheres more closely to both theories.