Academic journal article Northwestern University Law Review

From Language to Law: Interpretation and Construction in Early American Judicial Practice

Academic journal article Northwestern University Law Review

From Language to Law: Interpretation and Construction in Early American Judicial Practice

Article excerpt


In the law, words matter. And how judges go about deciding what words mean matters even more. Look no further than last year's Supreme Court term. The Justices' analysis of the text of federal and state statutes determined whether Ohio was impermissibly restricting its residents' constitutional right to vote.1 The Justices' analysis of another federal statute determined whether the government could deport a lawful permanent resident.2 The right to vote, the liberty to remain in the United States-the existence and contours of these and other foundational rights and liberties come down to written words, whether of state legislation, federal statutes, treaties, or the Constitution. Written words have always mattered when judges analyze legal texts. And in an age where, according to Supreme Court Justice Elena Kagan, "we're all textualists now,"3 and where two more selfidentified originalist judges have recently joined the Court,4 how we get from written words to the law matters more than ever.

It may be safe to say that "[e]verybody knows that in legal interpretation we start with written words and somehow end up with law," as Professors William Baude and Stephen Sachs assert in a recent article.5 It may even be safe to say that everybody agrees-on that, at least. But it is even safer to say that not everybody agrees on exactly how we do, or how we should, get from written words to resolution of a legal dispute.

The interpretation-construction distinction offers one theory articulating how judges get from written text to the legal resolution of a case.6 Professor Lawrence Solum, one of the most prolific contemporary scholars writing about the interpretation-construction distinction, has described it as follows. Analysis starts with the text in dispute: a provision of a statute, a phrase in a treaty, or even a single word in the Constitution. "Interpretation" applies linguistic rules to uncover the semantic meaning of the text.7 In contrast, "construction" applies substantive or legal rules to resolve the disputed meaning of the text in question.8 When jurists "interpret," they find out "the meaning of language"; when they "construct," they find out "its legal content-the changes it works in the law by its adoption or enactment."9 Of course, not everybody agrees that Professor Solum's interpretation-construction distinction accurately describes how we get from written words to law. Some scholars argue that the interpretationconstruction distinction does not exist.10 Others acknowledge that the distinction may be useful, but dispute what constitutes "construction" and what kinds of canons and evidence are appropriate for use in the "construction zone."11

While contemporary theories about the interpretation-construction distinction have generated robust debate,12 historical evidence prior to the mid nineteenth century is less plentiful. Professor Solum notes that "[t]he interpretation-construction distinction is an old one, with deep historical roots in American jurisprudence."13 Scholars point to an 1839 treatise by Francis Lieber as early evidence recognizing an explicit distinction between interpretation and construction as a theoretical matter.14 But what about as a practical matter?

This Note explores what early American judicial practice indicates about interpretation, construction, and the interpretation-construction distinction based on an analysis of Supreme Court opinions from 1795 to 1805. In doing so, it canvasses the historical evidence of how early American Justices got from written words to law. It summarizes the trends in how early American Justices analyzed various texts and offers an assessment of how these trends might inform contemporary debates about interpretation and construction.

This Note proceeds on the assumption that evidence of early judicial practice has something to tell contemporary jurists about analyzing legal text. At minimum, it describes historical practice in the early years of this country. …

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