Originalism and Constitutional Construction
Lawrence B. Solum
Georgetown University Law Center
November 3, 2013
82 Fordham L. Rev. 453 (2013)
Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.
This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theorists may prefer to use different terminology to mark the distinction between interpretation and construction, every constitutional theorist should embrace the distinction itself, and hence should agree that construction in the stipulated sense is ubiquitous. Construction occurs in every constitutional case.
The second claim is more substantive and practical. In some cases, construction can simply translate the plain meaning of the constitutional text into corresponding doctrines of constitutional law — we might call this strict construction. But in other cases, the constitutional text does not provide determinate answers to constitutional questions. For example, the text may be vague or irreducibly ambiguous. We can call this domain of constitutional underdeterminacy the construction zone. The second claim is that the construction zone is ineliminable: the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction that goes beyond the meaning of the text for their application to concrete constitutional cases.
Part I of this Article situates the idea of constitutional construction in the context of contemporary debates about originalism and among originalists. Part II argues that the interpretation-construction distinction provides conceptual clarity and answers a variety of objections to the distinction itself and the use of the terms “interpretation” and “construction” to express the distinction. Part III advances the claim that construction is ubiquitous; Part IV makes the case for the ineliminability of the construction zone. Part V discusses the relationship between constitutional construction and debates about originalism and living constitutionalism. A conclusion follows.
This is the final version of this article as it appears in print.
Number of Pages in PDF File: 85
Keywords: constitution, interpretation, construction, interpretation-construction distinction, vagueness, ambiguity, original methods, deference, constraint
Date posted: August 9, 2013 ; Last revised: November 3, 2013
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