Whatever It Is, He’s Against It

Last week, I was at the University of San Diego at a marvelous conference on originalist works in progress, which was organized by Professors Michael Rappaport and Michael Ramsey of the USD faculty. Today, on The Right Coast, Mike Rappaport posts this:

One particular highlight of the conference was the last session, in which Larry Solum gave a paper on Interpretation and Construction, with comments from Larry Alexander. In the room were the four leading advocates of construction — Keith Whittington, Randy Barnett, and Jack Balkin, along with Larry Solum — as well as one of the critics of construction (yours truly — for my criticism, see here). Significantly, each of the four constructionists had a different conception of construction.

Larry Solum’s paper was on the distinction between constitutional interpretation and constitutional construction, and he offered a refinement on how to define and describe that distinction. Naturally, this stimulated a discussion on this modified way of understanding the distinction.

None of this undercuts the proposition that constitutional construction is required to supplement constitutional interpretation. In contrast, Mike Rappaport and John McGinnis purport to reject the distinction altogether. In a recent debate, however, Mike’s criticism was aimed at one particular approach to constitutional construction, rather than at the distinction itself. He seemed to equate constitutional construction with judges employing normative reasoning, which is not what construction means. (Applying precedent, for example, is one form of constitutional construction.)

Mike’s reaction to the lively discussion of Larry Solum’s paper suggests that, however you define the distinction between interpretation and construction, Mike’s against it. Which brings to mind the following:

More seriously, for those who wish to watch the debate between Mike and me, the link to all 6 YouTube videos is here. Here is the opening video:

UPDATE: Larry Solum comments here, though sadly without any clips from movies or TV. Here is a portion:

Of course, the words “interpretation” and “construction” are frequently used as synonyms, but there is a long tradition in the common law that differentiates “interpretation” which aims to recover the linguistic meaning of a legal text (e.g., a contract, statute, or constitutional provision) and the legal effect that the text has.

My recent work aims at providing the underlying theoretical foundation for the distinction–and I’ve recently tried a formulation that focuses on interpretation as the activity that yields semantic content and construction as the activity that yields legal content. But there is a possible misunderstanding that can be introduced by this way of putting things–because it focuses attention on judicial constructions of the constitutional text that typically yield constitutional doctrines as their outputs. But as Keith Whittington and Jack Balkin note, “construction” also refers to political activities–e.g., the constructions of the constitution that occur outside of the courts and which are frequently institutionalized in the form of legislation. I agree with this understanding of the scope of construction–and as far as I could tell, so did Barnett, Balkin, and Whittington. Moreover, all four of us seemed to agree that constructions could occur in the courts in the form of constitutional doctrines–Barnett is clear about this, Whittington seemed to agree with this in the colloquy, and Balkin’s writings seem to imply this.

UPDATE II: Mike updates his original post by denying he has a mustache. Seriously, again, he seems to be objecting to (allegedly) different ways of doing constitutional construction and NOT on the need to supplement originalist interpretations of linguistic meaning with constitutional constructions, where that meaning is vague. He then says:

Randy notes that in our debate, which he links to, that I had only given arguments against one construction approach. That is largely true, but for a good reason. I was debating him! And the differences between the approaches are often difficult to understand. So I thought it best to focus on the one approach at issue.

But what I thought we were debating–at least what I was debating–was not my approach to doing constitutional construction but the utility, and even necessity, of distinguishing between the activity of interpretation and the activity of construction–however it should be done. One benefit of clearly identifying the activity of construction is to illuminate the differing approaches people use so they may be properly compared and evaluated, just as we compare and evaluate differing approaches to interpretation. Moreover, in our debate, Mike mischaracterized my approach to construction as advocating that judges employ normative reasoning, whereas I previously contended that any approach to constitutional construction must be normatively justified. (And one’s normative justification will likely depend on what one thinks makes a constitution legitimate.)

Objecting to a particular mode of construction does not address the necessity and utility of distinguishing between the two activities. But I still understand Mike to be against any such distinction between interpretation and construction, highlighting my (now) favorite part of the lyric: “And even when you change it or condense it, I’m against it.”

UPDATE III: Immediately after posting the last update, I noticed this sentence in Mike’s update:

Finally, it is true that some aspects of some of the construction approaches do not directly implicate my argument in the previous paragraph, and I don’t necessarily oppose them.

This suggests that maybe Mike is not against the distinction after all. This would be progress and I look forward to hearing more about this from him in the future.

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