« Charles Barzun on Originalism as Our Law
Michael Ramsey
| Main | Financial Oversight and Management Board v. Noel Canning
Chris Green »

06/02/2020

Lawrence Solum on Interpretation and Construction
Michael Ramsey

At Legal Theory Blog, Lawrence Solum has an updated entry in the Legal Theory Lexicon: Interpretation and Construction.  It begins:

Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex.  What does the text mean?  How does that meaning translate into legal doctrine?  And how does the doctrine apply in the context of the facts of the case?  One way to think more clearly about this process is to distinguish between interpretation and construction.  We can roughly define these two activities as follows:

  • Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.
  • Construction: The activity of determining the legal effect (or legal content) of a legal text.

Those definitions sound pretty technical, but I hope you are starting to get the idea.  We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

And on the relationship between originalism and the interpretation/construction distinction:

History of the Interpretation-Construction Distinction

My impression is that many legal scholars believe that the interpretation-construction distinction was introduced by Keith Whittington and popularized by Randy Barnett as as part of the emergence of the "new originalism" in the late 1990s.  The distinction did play an important role in the emergence of one strand of the new originalism--more on that in a moment.  But the distinction is an old one in American legal theory, going back to the first half of the Nineteenth Century in the work of Franz Lieber and playing an important role in the work of Arthur Corbin in the Twentieth Century.  Greg Klass has done important work on the history--some of which is linked to below.

The Interpretation-Construction Distinction and the New Originalism 

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism."  One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. 

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results.  We might call the view that original meaning and a living constitutionalism are consistent "compatibilism"--the case for this view has been made by Jack Balkin.

I've raised this objection before in the context of discussing New Originalism, but here it is again:  I think the account above doesn't adequately distinguish between two different divides in originalist theory.  One is the divide between original intent originalism (the "Old Originalism" associated with Robert Bork and modern scholars such as Larry Alexander and Richard Kay) and original public meaning originalism associated with Justice Scalia (and modern scholars such as Gary Lawson and Michael Paulsen).  The other is the divide between those who embrace a broad "construction zone" where the interpretation/construction distinction "opens the door for a partial reconciliation of originalism with living constitutionalism" (the "New Originalism" described in the excerpt) and those who do not.

It's important to keep these divides separate because a number of modern originalist scholars are neither "Old Originalists" (in the sense of embracing original intent) nor "New Originalists" (in the sense of embracing a broad "construction zone").  I call them "Scalian originalists" because Scalia was a pioneer of this position -- he adopted original public meaning instead of original intent as the touchstone of his inquiry (thus he was not an "Old Originalist") but he rejected the idea of construction in the sense of the excerpt above.

Mike Rappaport adds: I agree with the criticism that Mike Ramsey makes here.  I have written about this previously where I discuss the problem of the name of the New Originalism and of treating New Originalists as the only advocates of original public meaning.