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04/14/2019

Frederick Schauer: A Critical Examination of the Distinction between Interpretation and Construction
Michael Ramsey

Frederick Schauer (University of Virginia School of Law) has posted A Critical Examination of the Distinction between Interpretation and Construction (33 pages) on SSRN.  Here is the abstract:

The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative text in a statute, in the Constitution, or in any other authoritative legal item. But at the heart of the distinction is the idea that identifying the linguistic meaning of a legal text does not answer the question of how that text should be applied to specific facts and specific legal controversies. This is construction, so it is said, and it necessarily goes beyond the process of interpretation.

Although the distinction is a valuable precaution against those who would seek to claim that the application of law is entirely or mostly a question of meaning, it runs into trouble when it confronts the existence of technical legal language in the law. Interpreting such language, especially when it is constitutive or evaluative, requires recourse to legal values, legal goals, and the purposes of legal institutions, but in doing so it requires recourse to law at interpretation stage. As a result, the basic insight of the distinction between interpretation and construction – that semantic content and legal values are different, and that law enters the process only at the construction stage – is of limited value when the language at issue is legally technical.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended").

Professor Schauer presented an earlier version of this paper at the University of San Diego Originalism Works-in-Progress conference in February.