Originalism and Constitutional Construction

Lawrence B. Solum 

Georgetown University Law Center
August 7, 2013

Fordham Law Review, Forthcoming 
Abstract:      
Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decision of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the Nineteenth and Twentieth Centuries, marks the difference between these two activities.

This Article advances two central claims about constitutional construction. The first claim is that constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theorists may prefer to use different terminology to mark the distinction between interpretation and construction, every constitutional theorist should embrace the distinction itself, and hence should agree that construction in the stipulated sense is ubiquitous.

The second claim is more substantive and practical. In some cases, construction can simply translate the plain meaning of the constitutional text into corresponding doctrines of constitutional law — we might call this "strict construction." But in other cases, the constitutional text does not provide determinate answers to constitutional questions. For example, the text may be vague or irreducibly ambiguous. We can call this domain of constitutional underdeterminacy "the construction zone." The second claim is that the construction zone is ineliminable: the actual text of the United States Constitution contains general, abstract, and vague provisions that require constitutional construction for their application to concrete constitutional cases. The second claim is (and should be) more controversial than the first; objections to the existence of the construction zone are considered and answered in this Article.

Part II of this Article situates the idea of constitutional construction in the context of contemporary debates about Originalism and among originalists. Part III investigates the interpretation-construction distinction and the terminology in which it is expressed. Part IV advances the two central claims of this Article: that construction is ubiquitous and the construction zone is ineliminable. Part V discusses the relationship between constitutional construction and debates about Originalism and Living Constitutionalism. Part VI concludes.

Number of Pages in PDF File: 78

Keywords: constitution, interpretation, construction, interpretation-construction distinction, vagueness, ambiguity, original methods, deference, constraint

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2307178