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12/22/2020

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

At Legal Theory Blog, Larry Solum has an entry in his Legal Theory Lexicon for "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. [Ed.: Professor Solum is too modest to add his own name here, but it obviously belongs; see for example this article.]

And from later on:

Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The "interpretation zone" is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute's legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

For counterpoints, see Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction by John McGinnis and Michael Rappaport, and Construction, Originalist Interpretation and the Complete Constitution by Richard Kay.