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01/25/2021

John McGinnis & Michael Rappaport: Minimizing the Construction Zone
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) and Michael B. Rappaport (University of San Diego School of Law) have posted The Power of Interpretation: Minimizing the Construction Zone (Notre Dame Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions finding that meaning occur within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on something other than the original meaning and occur within the construction zone.

This Article represents the first sustained challenge to the importance of the distinction. It argues that a variety of techniques enhance the power of interpretation to resolve uncertainties and thus greatly reduce the size of the construction zone. These techniques are principally supplied by the language of the law in which the Constitution is written. The language of the law’s technical legal terms and legal interpretative rules provide a precision that ordinary language does not. When these techniques are correctly employed, the construction zone ends up being small. Under a small construction zone, issues that cannot be resolved based on the original meaning – principally the application of vague terms – rarely arise and, when they do, they involve only questions of secondary importance.

We make our case in three ways. We first offer a conceptual framework for resolving indeterminacy. We show how ambiguity can always be resolved by choosing the better attested meeting—an interpretive direction that existed at the Founding. We also show that many terms that seem vague are in fact ambiguities of related meaning, as for instance when the term property may mean either real property or real property and personal property. These ambiguities can, like other ambiguities, be resolved by following the better attested meaning. We then consider constitutional issues prominently proffered as examples of vagueness or other indeterminacies and show how they can be resolved under our framework. We finally show that modern originalist scholarship interpreting important constitutional provisions makes implicit use of our techniques to find determinate meanings rather than the indeterminacy requiring construction.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week."  Professor Solum adds: "Highly recommended.  There is much in this essay with which I agree and some things that I believe are deeply wrong.  Download it while it's hot!"