Interpretation and Construction
Barnett, Randy E., Harvard Journal of Law & Public Policy
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." (1) 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.
In this Essay, I want to elaborate and defend 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 I begin 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.
With this caveat in mind, let us now examine the difference between interpretation and construction. Both interpretation and construction are activities. Interpretation is the activity of identifying the semantic meaning of a particular use of language in context. Construction is the activity of applying that meaning to particular factual circumstances. Originalists may disagree about many things, but they should all agree on the meaningfulness of this distinction. Without it, originalists are very likely to talk past each other, or their critics, and to confuse themselves and others.
What defines originalism as a method of constitutional interpretation is the belief that (a) the semantic meaning of the written Constitution was fixed at the time of its enactment, and that (b) this meaning should be followed by constitutional actors until it is properly changed by a written amendment. (2) The original meaning of the text provides the law that governs those who govern us; and those who are bound by the Constitution, whether judges or legislators, may not properly change its meaning without going through the amendment process.
It cannot be overstressed that the activity of determining semantic meaning at the time of enactment required by the first proposition is empirical, not normative. (3) Although we can choose to use words however we wish, as Alice discovered in Wonderland, the social or interpersonal linguistic meaning of words is an empirical fact beyond the will or control of any given speaker (which was the point being made by Alice in Wonderland's author). Although the objective meaning of words sometimes evolves, words have an objective social meaning at any given time that is independent of our opinions of that meaning, and this meaning can typically be discovered by empirical investigation. Conducting such an investigation is no more a normative activity to reach conclusions we like than is discovering what is considered good manners in a given society. Say "please" and "thank you"? Shake hands? Bow to someone of higher social status? Wear a veil? We can approve or disapprove of such social practices, and decide whether or not to follow them, but their status as norms is a fact.
So too is linguistic usage or semantic meaning. Although I am free to say, "trumetric lyperboly," I cannot expect that anyone but me has access to what these two words mean. …