« The Constitution and Wealth Taxes
Michael Ramsey
| Main | Why Supreme Court Judging Is Not Necessarily Partisan
Mike Rappaport »


Larry Solum's Legal Theory Lexicon on the Construction Zone
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory lexicon has this new entry: The Construction Zone.  From the introduction:

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett.


Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase "freedom of speech" underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase "freedom of speech" does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

And from further on:

Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provides methods for choosing implementation rules.

There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.