Interpretation/Construction Again

Mike Rappaport updates his original post on the interpretation and construction distinction with this:

What is clear is that the four constructionists emphasize different things, appear to be motivated by different concerns, and describe their positions differently. That is what I meant by saying that the different scholars “had different conceptions of construction.”

Larry [Solum] claims that his conception of construction allows for their conceptions, and it might be true. But Larry’s conception, if I understand it now, is very general. Depending on how one gives content to it, I might even agree with him. He says interpretation is determining meaning and construction is given legal effect to a provision. He even says that when one gives effect to an unambigous provision, one is engaged in (a kind of) construction. Under this view, my approach may be consistent with Larry’s as well. I believe virtually all cases can be decided based on interpretation. And giving effect to these interpretations can be deemed construction. If that is construction, then I have little reason to reject it. Of course, most people think of construction differently.

I do think there are important implications of this discussion. Most importantly, some scholars may see a large number of prominent commentators accepting construction and therefore mistakenly conclude that they are all accepting a common practice or conception. My point here is that the scholars differ in focus and there is no single notion of construction that everyone should feel compelled to accept.

I think Mike misunderstood the discussion we were having in San Diego and, as a result, is now unintentionally confusing matters. As I explained at our debate in New Orleans, all those who think the distinction between interpretation and construction accurately describes two different activities, agree that (1) “interpretation” describes the activity of discovering the semantic meaning of the language of the Constitution in context; and (2) “construction” describes the application of this meaning to particular issues, especially when there the text is too vague to provide a determinate resolution. As Larry Solum wrote in his paper for the San Diego conference: “constitutional vagueness requires construction.” Larry then expanded the term “construction” so it also included the development of legal doctrine to apply perfectly clear textual passages where construction may appear to disappear. So readers can judge for themselves, I include a lengthy and somewhat abstract passage:

Constitutional construction becomes transparent in cases in which the linguistic meaning of the constitutional text is vague. Once we have determined that the semantic content of the constitution is vague and that the case to be decided lies in the penumbra of the rule, constitutional interpretation cannot resolve the case. In such cases, we might say that interpretation makes its exit and construction enters the scene. Characteristically, constitutional construction becomes noticeable in cases in which the constitutional text is vague.

Constitutional construction might also become noticeable in a variety of other contexts. For example, it is at least theoretically possible that constitution contains gaps or contradictions. If two provisions of the constitution had semantic content such that the corresponding legal rules would contradict each other, then construction might resolve the contradiction—perhaps on the basis of an argument from the overall constitutional structure or the purposes that could be attributed to the relevant provisions. Likewise, if there were a constitutional issue on which the constitutional text were silent, then a constitutional construction might fill the gap. Similarly, it is theoretically possible that there are some constitutional ambiguities that cannot be resolved by interpretation: for example, it could be the case that the available evidence about linguistic usage and context is simply not sufficient to reveal the public meaning of the provision. If there are such “residual constitutional ambiguities,” then their resolution would require constitutional construction.

So far, I have been discussing the situations in which constitutional construction is “transparent” or “noticeable.” But constitutional construction also occurs in situations where it is “opaque” or “invisible,” because constitutional interpretation has already done the work. Theoretically, this occurs when constitutional doctrine mirrors the semantic content of the constitutional text. For example, the Constitution provides, “The Senate of the United States shall be composed of two Senators from each state.” Our constitutional practice on this question is settled: the rule of constitutional law corresponds exactly to the linguistic meaning of the written Constitution. In other words, this is a case where the legal content of constitutional doctrine is equivalent to the semantic content of the text. In other cases, the semantic content of the text constrains but does not fully specify the legal content of constitutional doctrine. Once again, Hart’s picture of core and penumbra is helpful: the semantic content determines the core of constitutional doctrine, but other factors determine the shape of doctrines in the penumbra. In both cases, construction is at work, but construction in the core is more or less “automatic” or “mechanical” and hence “opaque” or “invisible.” Construction in the penumbra requires resort to legal principles or considerations of political morality that are outside the constitutional text: hence, construction in the penumbra involves “judgment” or “choice” and hence is “transparent” or “noticeable.”

None of what he said is inconsistent with the distinction as it has previously been accepted about the limits of interpretation, and the need for construction. It merely broadens a bit the conception of construction to better capture all the activities that are necessary to apply the meaning of the text to particular issues. Although there was questioning at the conference about exactly what he was saying about construction during in his oral presentation, it is a little unfair to seize upon these questions at a discussion of works-in-progress to claim that scholars who are now employing the distinction are employing different “notions” of construction. Rather, Larry’s is an effort to refine our understanding of what is happening on the construction side of the line.

Second, Mike still seems to running together two issues: (a) the distinction between interpretation and construction and (b) how exactly construction is to be done. He is absolutely right that scholars who acknowledge the difference between interpretation and construction may differ on their favored methods of interpretation, construction or both. Public meaning originalists may all agree on the method of interpretation (though Rappaport and McGinnis are advocating a new modification of this method, which they call “original methods originalism”). At the same time originalists will predictably differ over how construction should be done to apply original meaning to particular issues [precisely because originalism, the theory of interpretation they hold in common, does not address this issue].

This is not a bug, it is a feature of the distinction, because it highlights what is being agreed upon–how to interpret the text–and what is being disputed–how to apply this meaning to particular issues. Just as we debate methods of constitutional interpretation, we also can debate methods of constitutional construction. So, yes indeed, some originalists have different “notions” of construction, if by this is meant they do not all agree on how construction is to be done. This is far from a secret; I insisted on this possibility in Chapter 5 of my book, Restoring the Lost Constitution: The Presumption of Liberty

But Rappaport (& McGinnis) appear in their writings to be challenging the need to distinguish these two activities, and collapsing construction into interpretation as though they are the same. In actuality, I think they are advancing their own methods of construction to be employed when the linguistic meaning of the text is vague: use the methods of construction in existence at the time the text was adopted–for example, “defer to the legislature.” But I suspect that they want to resist this reformulation of their position because they want to wrap their approach to construction in the mantle of originalist interpretation–to claim that their methods of construction are somehow IN the text itself. So, if the text is authoritative (as originalists claim), so too are their constructive methods.

This is implied by Mike labeling others “constructionists” while excluding himself–as though he and McGinnis are not advocating their own approach to construction that requires normative justification. This would be fine if the text really did incorporate their constructive methods, as it adopted rules of construction in the 9th, 10th, & 11th amendments. I believe the claim that a rule of construction such as, “defer to the legislature,” is implicit in what the Constitution says to be empirically false. No reasonable reader of the Constitution at the time it or its amendments were enacted would find it there. Of course, I cannot rule out the possibility of evidence showing that some such rule was indeed implicit in the meaning of the text itself so that it might be yielded by interpretation. But, in the absence of such evidence, any such rule of construction needs to be normatively defended, wholly apart from whatever normative reasons we have for adhering to the original meaning of the Constitution.

In essence, nonoriginalists who do not want to be bound by the original meaning of the text–or even by the text itself–are really claiming that “everything is construction.” Conversely, Rappaport and McGinnis who do not want to normatively defend their approach to construction want to claim that “everything is interpretation.”

In the end, the distinction between interpretation and construction is only “valid” if it is usefully captures something real about the limits of interpretation and the need for supplementing the meaning conveyed by the text. Mike’s latest round of blog postings shows just how useful and necessary the distinction truly is.

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