The Interpretation-Construction Distinction
Solum, Lawrence B., Constitutional Commentary
The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. (1) I shall argue that the distinction is both real and fundamental--that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly. (2)
The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation--which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction--which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words "interpretation" and "construction" that express the distinction) could vary, legal theorists cannot do without the distinction.
One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction--that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself.
Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, "What is interpretation?" and "What is construction?" In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensible.
II. TWO PRELIMINARY SETS OF IDEAS
Before we get to the distinction itself, we need to examine two related distinctions. The first of these is the distinction between vagueness and ambiguity; the second distinction is between semantic content and legal content.
A. VAGUENESS AND AMBIGUITY
When we communicate via language (written or oral), we use words and phrases that can be formed into complex expressions using the rules of syntax and grammar. Sometimes the smallest meaningful unit of expression is a single word; sometimes, whole phrases carry meanings that cannot be decomposed into the meaning of constituent words. But whatever the relevant unit of meaning might be (words, phrases, sentences, or whole utterances), texts can be either vague or ambiguous.
In ordinary speech, the distinction between vagueness and ambiguity is not always observed. The two terms are sometimes used interchangeably, and, when this is the case, they both mark a general lack of what we might call "determinacy" (or "clarity" or "certainty") of meaning. …