Friday, April 10, 2020
Vermeule’s essay reveals the dangers of a large “construction zone” within originalism. One of the defining characteristics of the so-called new originalists is the centrality of the distinction between the zone of interpretation and the construction zone. When the original meaning is determinate, the content of a provision can be settled by interpretation. But when the original meaning of a constitutional provision is indeterminate, the content of the provision cannot fully be determined by interpretation. Instead, the law must be established in some other manner—such as an appeal to a normative theory—within what is called the construction zone. A version of common-good constitutionalism is one such normative theory.
Like so much of our infrastructure, a lot of the Constitution is in the construction zone.