FedSoc LiveBlog: Constitutional Interpretation & the Bill of Rights featuring Burt Neuborne and Randy Barnett

November 13th, 2009

Constitutional Interpretation & the Bill of Rights
Friday, Nov. 13
9:00 a.m. – 10:00 a.m.
Grand Ballroom

– Presentation: Prof. Burt Neuborne, Inez Milholland Professor of Civil Liberties, Legal Director, Brennan Center for Justice, New York University School of Law
Commentary: Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals, Ninth Circuit

Judge O’Scannlain introduced panelists


(Professor Neuborne)


(Professor Barnett)



We tend to tear words and clauses out of the Constitution and look at them in isolation (originalism, purposivism). Treat Bill of Right as reading random splatter. Reading it that way misses extraordinary aspect of founder’s genius. Unlike any other document in history, within its four corners, structural coherence that teaches us how to live in a tolerant and free democracy, both horizontally and vertically. Changes commitment to document if we looked at it that way, and changes how we look at cases.

Have you ever read Bill of Rights or entire Constitution as a coherent document? You would read the entirety of a poem to capture its ethos. Bill of rights looked at that way has remarkable coherence.

Why is Fourth Amendment after Second and before Eight? Why does it end with 10th and end with the First? [The first Amendment was originally Third] The first amendment protects the ideal commonwealth.

Next 9 amendments list risks and dangers to ideal commonwealth in the First Amendment. 2nd and 3rd deal with military overthrows. 4-8 deals with chronological development of law enforcement. Maybe it is random, but no other document has those rights in such an order. Madison’s genius not substantive, it was structural. adison’s capacity to see structural blueprint to create toelrant democratic society form a series of dangers that are placed in crhonological order of magnitude.

Why close with 9th and 10th? Founders did what you would expect brilliant people to do. They are cannons of construction. They tell us how to read the documents. Brittish Parliamentary Tradition- Equity of the statutes (expanded text analogically and filled lucanae with nontextual expansion), and inclusio unius (if not in text you cannot expand it).

9th- When rights are at stake- equity of the statutes is permissible. Fill the gaps.

10th amendment- When powers at stake, inclusio unius applies, must stay within the text

Broad reading of rights and narrow reading of powers more important than actual rights in BOR. This is the vertical reading of the BOR. It tells a coherent story.

Horizontal Coherence

First Amendment has 6 ideas- establishment, free exercise, speech, press, assemble, petition. Series of concentric circles from inner realm of human conscience . First amendment gives life cycle of the person. Begin in human conscience and move in concentric circles to law (petition).

Freedom of association is not in text of Constitution, Harlan dropped it in. Harlan acting in ethos of 9th amendment, and can use equity of statute to look at Amendment and using techniques of Brittish Lawyers to fill the lacunae with something compatible and logical and necessary to full enjoyment of the text. Conservatives tend to accept freedom of association because it is fill out blank in First Amendment with power from 9th to construe broadly, but not entirely, due to equity of the statute.

“I never finish in time. When the Grim Reaper comes for me, I will ask for a few more minutes.”


Explaining order of Amendments and Clauses are ingenious.

Original public meaning originalism. Difference between Constitutional Interpretation and Constitutional Construction.

Interpreting text of Constitution involves ascertaining its meaning. Interpretation attempts to identify information included in this text.

Original public meaning interpretation seeks information it conveyed to general public at the time it was enacted. Originalists may disagree how this inquiry is supposed to be conducted, but all share common question; ascertain information conveyed by text in context at the time it was enacted. Originalists convey that text may be insufficient to resolve case or controversy.

Constitutional construction- puts info text does convey into action.

Regulations about time, place, and manner do not improperly abridge freedom of speech, but coordinate the right. These rules cannot be found in the First Amendment. This is Constitutional Law, as opposed to the Constitution itself. If it cannot be deduced from the text, most of what the Court does is actually construction and not interpreation.

You are in the “Construction Zone,” where info provided by text has run out (Solum). Claim that Judges should let elected branches decided if text is silent is a form of Constitutional construction, because it is no where in the text.

How should one do constitutional construction? Depends on extratextual theory of Constitutional legitimacy; what makes Constitution binding. If legitimacy is based on original or ongoing consent of people, adopt a different concept, or if you beleive legitimacy is based on procedural method.

Holistic reading of BOR is interpretive if it reveals or uncovers original meaning of the text that is part of its public meaning. Ninth amendment refers to rights, and 10th amendment refers to powers.

Holistic approach interpretive if it resolves questions of ambiguity. Arms in 2nd amendment can refer to weapons or limbs. Rendering abstract term more specific in context than it may appear.

Due process may be vague, due process of law may be less vague. Juxtaposition with Priv or Immun or Equal Protection makes it less vague.

Since Constitutional construction is inevitable, wholism provides a good approach. But no normative justification why we should adopt holistic approach. The burden is no him before we adopt his approach.

A holistic approach intriguing way to decide text, but no reason wy we should interpet it like that when text runs out.

The danger, in various places, approach is neither to interpret or construct text, but instead uses it to contradict or supercede the text.

His approach- 2nd amendment to keep and bear arms as protecting individual right to serve in armed forces or local police forces analogous to militia. But this is not at all what the text says. Reason for rejecting individual rights treatment of 2nd amendment unpersuasive. This is just the standard approach to evade, rather than apply the meaning of the text.

1. Start with the text of the speech to discern the principles that underling the word.

2. Take principles, and apply to cases or controversies. Abandon and leave behind text and adopt principles. Black in Griswold- most effective way of diluting constitutional right is to substitute another word more or less restrictive in meaning. During Reconstruction clause, evaded meaning of amendments, leading to Plessy. When you plunge beneath surface of text to understand principles, and then apply it to the text. Not substitute to the text. To be faithful to elegant structure of BOR, use text as he finds, not the lovely poem he wishes it to be.

Neuborne Reply

People at ratifying convention looked at entire document. Need to recapture the psychology of people creating the founding document. Best way to recapture psychology is by reading the whole. If you rank the ways Judges make decisions, no hesitation to debate the holistic readings is the best way to do that, and the way to do that most respectful of the text.

Holistic reading subverts, or goes beyond a construction of the text, most controversial aspects.

He deploys only when respect for the text would mean the text would drift away. 250 years have left the text without contemporary meaning, and giving original meaning would give it absurd meaning.

2nd amendment anachronistic. Can’t use handguns and rifles to defend against standing army. [One word. Fallujah]

Militia has morphed into police and citizens army. Purely on the merits, looking at holistically, protects against unrepresentative bodies of armed coercion to single out people.

O’Scannlain asks about Incorporation.

Neuborne says it will be incorporated against the states. Its too important.

Neuborne noted that subsequent amendments should be read to modify Bill of Rights.


Pics and Video after the Jump