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12/31/2012

Scalia & Garner on Interpretation and Construction
Michael Ramsey

In light of Lawrence Solum's post on the Interpretation-Construction Distinction and Mike Rappaport's thoughts in response, I thought it might be worthwhile to note this passage from Scalia & Garner's Reading Law (pp. 13-15, footnotes omitted):

Modern nontextualism is based in part on an equivocal use of the word construction, which is the noun corresponding to construe.  When construing a statute, one engages in statutory construction, which has long been used interchangeably with the phrase statutory interpretation.  When one is construing a constitutional text, one is engaged in  constitutional construction or, again, constitutional interpretation.  When construing a contract, one is likewise engaged in contractual construction – though the more usual phrase is contractual interpretation.  So far, so good. 

Oddly enough, though, the noun construction answers both to construe (meaning “to interpret”) and to construct (meaning “to build”).  Lawyers have been known to make the embarrassing linguistic gaffe of talking about constructing a statute when they refer to deriving meaning from it. …

... [N]ontextualists have latched on to the duality of construction.  … [S]cholars have elaborated a supposed distinction between interpretation and construction: “The academic discourse … increasingly distinguishes between constitutional interpretation, which is a hermeneutic exercise common to literature and law alike, and constitutional construction, which is a political and adjudicative exercise designed to fill the interstices of constitutional text.” [Citing Jamal Greene]  Thus is born, out of false linguistic association, a whole new field of inquiry.

But the equivocal nature of construction has positively done harm in the work of constitutional theorists who wish to liberate judges from the texts they construe.  One, for example [Jack Balkin], has recently written a 474-page book [Living Originalism] largely premised on the distinction: Constitutional interpretation, he says, is the “ascertainment of meaning,” while constitutional construction involves “build[ing] out the American state over time,” especially through all the supposed “modalities of interpretation: arguments from history, structure, ethos, consequences, and precedent.” … Even some textualists have embraced the distinction so as to contrast the legitimacy of constitutional interpretation with the relative illegitimacy of so-called constitutional construction. [citing Lawrence Solum].

But this supposed distinction between interpretation and construction has never reflected the courts’ actual usage …

(Note: I've corrected a transcription error in the fourth quoted paragraph: it's "the equivocal nature of construction" (not "constitution"); thanks to S.L. Whitesell for the catch).