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Construction, Originalist Interpretation and the Complete Constitution

University of Pennsylvania Journal of Constitutional Law Online, Volume 19, 2017

25 Pages Posted: 13 May 2016 Last revised: 21 Feb 2017

Richard S. Kay

University of Connecticut School of Law

Date Written: May 11, 2016

Abstract

The literature of constitutional originalism has, in recent years, featured a new concept, “constitutional construction.” This Essay is a critical examination of that concept. It demonstrates that, contrary to claims made for it, the difference between “interpretation” and “construction” is not a common and familiar distinction in common law adjudication. It therefore lacks the historical pedigree its proponents claim for it. The Essay then surveys various descriptions of the practice of constitutional construction and argues that, although differing with each other, they all tend to leave an ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that the constitutional text is incomplete in that it fails to provide a decision-rule for many — indeed for most — constitutional disputes so that constitutional construction is a practical necessity. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation that seeks to identify that meaning of the Constitution actually intended by the people whose assent made it law leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.

Keywords: Constitution, constitutional law, constitutional interpretation, interpretation, legal theory

JEL Classification: K40

Suggested Citation

Kay, Richard S., Construction, Originalist Interpretation and the Complete Constitution (May 11, 2016). University of Pennsylvania Journal of Constitutional Law Online, Volume 19, 2017. Available at SSRN: https://ssrn.com/abstract=2778744

Richard S Kay (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5262 (Phone)

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