IN LIGHT of this conception of constitutional legitimacy, what is the proper method of interpreting the Constitution? Does the fact that legitimacy is based on the existence of procedures that protect natural rights mean that the text of the Constitution should be disregarded when it appears to conflict with natural rights? In chapter 4, I argue that the Constitution must be interpreted according to its original meaning. This may surprise some readers, because “originalism” is often seen as following from popular sovereignty and I have rejected popular sovereignty as the source of constitutional legitimacy. It may surprise others who think a commitment to natural rights should trump the original meaning of the text. I shall argue, however, that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers.
Written constitutions are valuable to the extent they preserve or “lock in” an initially legitimate lawmaking scheme, and such “lock in” is not achieved if the meaning of the writing can be changed without formal amendment. While this rationale justifies interpreting the Constitution according to the original meaning of its words, it does not justify going beyond that meaning in an effort to recapture the original intent of its framers. Thus I defend what is sometimes called a “moderate” theory of originalism. Both the specific characteristics of original meaning originalism and the normative rationale I provide obviate the well-known criticisms of originalism based on an original intent and grounded in notions of popular sovereignty.
Originalist interpretation, properly understood and justified, has its limits. The failure to recognize these limits makes originalism more vulnerable to criticism than need be. In chapter 5, I explain how interpretation, originalist or otherwise, does not always produce unambiguous rules of law that can be applied to cases. For this reason, it becomes necessary to “construe” the Constitution in ways that effectuate its purposes but that do not contradict its original meaning. Constitutional “constructions” (as distinct from interpretations) that are consistent with original meaning should be chosen to enhance the legitimacy of the laws that are going to be imposed on the people without their consent. Finally, in chapter 6 I apply these concepts of interpretation and construction to the contentious issue of judicial review and examine the originalist evidence that overwhelmingly supports the judicial power to nullify unconstitutional laws.