Professor Franck and I agree that “getting the job done right” should be the priority for judges. The problem is in determining the correct interpretive methodology, which cannot itself be supplied by the document to be interpreted. Even if the document said explicitly, “This is the methodology to use” (which it certainly does not), you would need some interpretive rubric for determining the meaning of that instruction, which could never be specific enough to cover every case requiring choices about methodological approach.

But even if we were to reach a consensus on interpretive methodology, it couldn’t be the case that “all the interesting questions are about constitutional meaning,” since this meaning is indeterminate in so many cases. Article III and the history surrounding its ratification are vague about the precise contours of “the proper ambit of the judicial power.” And every single provision of the Constitution is hazy, at least around the edges.

How are judges to apply the Fourth Amendment’s prohibition of “unreasonable searches and seizures”? How does this apply to police use of infra-red search technology? How about FBI data-mining on the Internet or NSA wiretapping? Strip searches in airports?

And what about the individual right to bear arms announced in D.C. v. Heller? What is the scope of that right? Does it apply to knives, stun guns, rifles, machine guns, bazookas, stinger missiles, suitcase nukes? In public places, or only at home?

Conservatives don’t do themselves any favors by pretending these questions are simpler than they actually are. We need a robust theory that can deal with questions concerning methodological approach and constitutional construction in the face of indeterminacy.