The Interpretation/construction Distinction in Constitutional Law: Annual Meeting of the AALS Section on Constitutional Law

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INTRODUCTION

One of the most interesting developments in the constitutional theory of new originalism is its exploration of the distinction between interpretation and construction in constitutional law. Within this framework, "interpretation" refers to the process of determining a text's linguistic meaning, and "construction" refers to the process of giving the text legal effect. (1) The distinction plays out in the new originalist approach to the Constitution as follows. The defining characteristic of new originalism is its argument that the original public meaning of the Constitution's text should control its interpretation. (2) Yet new originalists do not contend that the Constitution's original public meaning is capable of resolving every constitutional question. (3) The Constitution's provisions are written at varying levels of generality. When the original public meaning of the text establishes a broad principle rather than a specific legal rule, interpretation alone cannot settle a dispute. (4) In that event, the need for construction arises) The First Amendment is a classic example. As Larry Solum observes, that amendment "provides for 'freedom of speech' and forbids its 'abridgement,' but this does not create a bright line rule, and as a consequence most of the interesting work in free speech doctrine must be done by construction rather than interpretation." (6) Many, though not all, new originalists accept constitutional construction as a means of dealing with constitutional ambiguity and vagueness. (7)

The new originalist move toward the interpretation-construction distinction has opened space for agreement between originalists and nonoriginalists. The old originalism was not known for an emphasis upon the role of factors such as values, purposes and precedent in the exercise of judicial review. (8) But insofar as constructing constitutional doctrine requires consideration of factors other than the text, it invites reliance upon some of the interpretive modalities that originalism had traditionally been understood to de-emphasize or even exclude. (9) The existence of this "construction zone" (10) has prompted some self-proclaimed "living constitutionalists" to defect to originalism on the rationale that the two theories are not, in fact, polar opposites. (11)

Originalism's embrace of this two-function model of constitutional decisionmaking also opens potential common ground for originalists and those nonoriginalists who employ a similar model. At roughly the same time that some new originalists began to focus on the interpretation-construction distinction, (12) some leading nonoriginalist scholars, spurred by Richard Fallon's Foreword in the 1997 Harvard Law Review, (13) began writing about the distinction between interpretation and implementation in constitutional law. Fallon pointed out that while we talk about the Court engaging in "constitutional interpretation," much constitutional doctrine does not even purport to interpret the Constitution's "meaning." He argued that the Court's practice in this regard is reflective of the fact that, "[i]dentifying the 'meaning' of the Constitution is not the Court's only function. A crucial mission of the Court is to implement the Constitution successfully. In service of this mission, the Court often must craft doctrine that is driven by the Constitution, but does not reflect the Constitution's meaning precisely." (14) Others, including Mitch Berman and Kim Roosevelt, have followed Fallon's focus on the Court's dual functions of interpretation and implementation to offer rich accounts of how we should understand what the Court does. (15) Not everyone in the nonoriginalist camp has accepted this "two output thesis" about judicial review; (16) notably, both Rick Hills and Daryl Levinson have rejected it. (17) Thus, the interpretation-construction distinction gives new originalists something in common with many nonoriginalists that even the latter's fellow travelers do not share. …