Legal Commentary

Constitutional Interpretation vs Construction

By Randy Barnett

Last week at at Federalist Society law professors meeting in New Orleans, I debated my friend San Diego law prof Mike Rappaport of The Right Coast on whether the distinction now being made between constitutional interpretation and constitutional construction was helpful or hurtful to originalism. I argued for the importance of the distinction and maintained that appreciating originalism as a theory of interpretation, and not a theory of construction, was helpful to understanding its power and limits. Mike argued against making any such distinction. If the Federalist Society posts the video of our exchange, I will link to it and perhaps comment on it here.

The next day, the Constitutional Law Section of the AALS held an excellent session on the Interpretation-Construction distinction featuring law profs Larry Solum, Rod Hills, Mitch Berman, John McGuiness, Ian Batrum, and Laura Cisneros. Now Mark Graber has posted this reaction to the panel in which he identifies several conflicting meanings of the interpretation-construction distinction. Although Mark?s post is thoughtful, I think it confuses rather than enlightens the distinction. And whereas he perceived disagreement about the distinction, I thought the panel was remarkably unified on what it was, though disagreed on its usefulness.

Fortunately, Larry Solum has posted his reaction to Graber on his Legal Theory Blog. It is well worth reading, along with his Legal Theory Lexicon entry on the topic. Since I think the distinction is absolutely crucial to avoiding confusion when debating constitutional issues, I highly recommend his latest post responding to Graber. Here is how Solum defines the terms:

Interpretation is the activity that aims to recover the linguistic meaning (or semantic content) of a legal text.

Construction is the activity that aims to produce juridical meaning (or legal content) that is authorized by a legal text.

The interpretation-construction distinction is both a technical idea in contemporary constitutional theory (especially in the work of Keith Whittington, Randy Barnett, and myself) and a technical distinction in the common-law. Because it is a technical distinction, the stipulated or technical senses of the words ?interpretation? and ?construction? does not necessarily correspond with their ordinary meanings in English?and a different vocabulary could be used to express the idea that recovering linguistic meaning (?interpretation?) is a different activity than is the specification of legal doctrine (?construction?). For example, someone might use the terms ?linguistic interpretation? and ?doctrinal interpretation? to mark the same distinction.

Solum then proceeds to examine critically each of the different senses of the distinction formulated by Graber. As is sometimes the case with academic discourse, Graber?s post provides an invaluable opportunity for Solum to make the meaning of the distinction far more clear. Read the whole thing here. The Legal Theory Lexicon entry on Interpretation and Construction is here.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).