Readers who think they may one day want to be legal academics should make it a habit to read University of Illinois Professor Lawrence Solum's Legal Theory Blog. There you will find his recommendations of recent legal scholarship, as well as his invaluable Legal Theory Lexicon. Today, for example, he explains the interpretation-construction distinction.

We can roughly define these two activities as follows:

* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.

* Construction: The activity of translating the semantic content of a legal text into legal rules

In my experience, law professors conflate these two activities all the time. What matters is not the terminology--that is merely semantic--but that serious confusion results from failure to recognize them as two different sorts of activities. The failure to distinguish which of these two activities are being discussed obscures sources of potential common ground as well as the substance of whatever genuine disagreements may exist.

After a very useful discussion of the difference senses of "meaning" as well as the difference between "vagueness" and "ambiguity," Solum then asks, "What Work Does the Interpretation-Construction Distinction Do?"

Is this interpretation-construction distinction really necessary? What work does it do? Does the distinction reflect a real and fundamental difference between different modes of legal practice?

One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction. What if we called everything "interpretation" and didn't recognize construction as a distinct activity. Well, we could reinvent the distinction within the concept of interpretation. You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction. But if we did that, we would simply be using different labels to refer to the same concepts.

So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts. Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment). For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement." If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on. (There is a Legal Theory Lexicon entry on transparency.)

But sometimes courts run interpretation and construction together without any awareness of the what they are doing. That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content. When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent. On the one hand, they may try to squeeze constructions out of linguistic facts. On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations. (Making the egregious error of arguing for the existence of a fact from its desirability.) When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error).

So is the interpretation-construction distinction real and significant? Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without. The linguistic meaning of a legal text and the content of legal rules are really two different things.

The Interpretation-Construction Distinction and the New Originalism

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism." One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction. (This is especially clear in the work of Keith Whittington and Randy Barnett.) The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation. Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work. New Originalists deny that this is true. They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene.

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results. We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin.

This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning. Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction.

This is just one example of the interpretation-construction in action. It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction.

Conclusion

Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality. The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases. The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion. With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.