9 Pages Posted: 13 Mar 2012
Date Written: March 13, 2012
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.
Keywords: interpretation, construction, originalism, Constitutional interpretation, Constitutional theory
JEL Classification: K00, K1, K3
Suggested Citation: Suggested Citation
Barnett, Randy E., Interpretation and Construction (March 13, 2012). Harvard Journal of Law and Public Policy, Vol. 34, 2011; Georgetown Public Law Research Paper No. 12-034. Available at SSRN: https://ssrn.com/abstract=2021318