The Difference Between Constitutional Interpretation and Construction

One of the crucial hallmarks of the so-called New Originalism is the recognition that there is a difference between two types of activities:  the activity of interpretation and the activity of construction.  Interpretation is the activity of ascertaining the semantic meaning of a text, including both its express and implied meanings, and taking into account the context of its utterance.  In short it is the effort to discern as accurately as possible the information conveyed by a text.  Construction is the activity of putting that meaning into action, or applying that meaning to particular cases and controversies when the information provided by the text is insufficient on its own and requires some sort of supplementation.  Original public meaning originalism is the empirical enterprise of identifying the public meaning of the text at the time of its enactment, and it accepts the normative principle that this meaning is “binding” — just how binding is a matter of some dispute among originalists — unless properly changed.

Although the labels “interpretation” and “construction” are not necessary, unless one gets the underlying distinction between these two types of activities, one simply does not understand what the New Originalism is about.  For those who are interested in originalism, I have posted to SSRN, Interpretation and Construction, an 8-page essay that I gave as a speech at the Federalist Society National Student Symposium in Philadelphia.  This short summary of the distinction does it somewhat better justice than the single paragraph above.  You can download it here.

Here is the  Abstract:

In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.

This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.

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