Much confusion in constitutional discourse on both the left and right stems from blurring together of two types of claims about the Constitution. The first concerns the semantic meaning of the text — the words on the page — and the second concerns the doctrines by which that text is applied to particular facts. For purposes of clarity, each activity deserves its own label. For about ten years now, scholars have followed the lead of Princeton political science professor Keith Whittington and begun calling the first activity “constitutional interpretation,” and the second “constitutional construction.” It is not the labels that are important but the difference in the underlying reasoning to which the labels refer.
Original meaning originalism is a theory of interpretation: identifying the semantic meaning of the words on the page. Originalism claim that “the meaning of the Constitution must remain the same until it is properly changed.” But by “meaning” is meant the semantic meaning of the text, not how the meaning can and should be applied to particular facts. Whether or not there is an “originalist” theory of construction is a matter of some debate. I have long insisted that constitutional construction is needed precisely when the information conveyed by original meaning interpretation has run out. Construction cannot, therefore, be “originalist” unless original meaning interpretation is supplemented by some other form of originalism. For example, a “hypothetical original intention originalism” might attempt to discern how the Founders would have themselves applied the meaning to particular cases. Years ago, I characterized this as “channeling the framers,” which I claimed was not justified by our commitment to a written constitution the way original meaning interpretation is. Many who criticize “originalism” actually have something like this latter approach in mind as their target, though few originalist scholars (if any) advocate such a methodology.
No one has done more to clarify this distinction than Professor Larry Solum, who is moving this summer from the University of Illinois to join me at Georgetown Law. Today, he posted his article forthcoming in Constitutional Commentary, The Interpretation-Construction Distinction. Here is the abstract:
The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!
The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words “interpretation” and “construction” that express the distinction) could vary, legal theorists cannot do without the distinction.
One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself.
Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, “What is interpretation?” and “What is construction?” In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable.
Whether you ultimately accept or reject the helpfulness of the distinction between interpretation and construction, no one today can talk knowledgeably about constitutional “meaning” without being familiar with it, lest one confuses oneself and others. Larry Solum’s paper is the easiest way to familiarize yourself with these concepts. Download it here.