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 [...]