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Academic

: Legal Theory Blog

The Interpretation-Construction Distinction & the Recent Conference at San Diego

By Lawrence Solum

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Mike Rappaport blogs today on the marvelous conference that he and Mike Ramsey organized at the University of San Diego. By the by, he comments:

One particular highlight of the conference was the last session, in which Larry Solum gave a paper on Interpretation and Construction, with comments from Larry Alexander. In the room were the four leading advocates of construction -- Keith Whittington, Randy Barnett, and Jack Balkin, along with Larry Solum -- as well as one of the critics of construction (yours truly -- for my criticism, see here). Significantly, each of the four constructionists had a different conception of construction.

And Randy Barnett has some comments on the Volokh Conspiracy. I found this session quite valuable, as my recent work aims at an investigation of the theoretical basis of the distinction. For the uninitiated, the interpretation-construction distinction figured prominently in Keith Whittington's work (see his Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review and Constitutional Construction: Divided Powers and Constitutional Meaning) and played a major role in Randy Barnett's Restoring the Lost Constitution: The Presumptions of Liberty. Of course, the words "interpretation" and "construction" are frequently used as synonyms, but there is a long tradition in the common law that differentiates "interpretation" which aims to recover the linguistic meaning of a legal text (e.g., a contract, statute, or constitutional provision) and the legal effect that the text has.

My recent work aims at providing the underlying theoretical foundation for the distinction--and I've recently tried a formulation that focuses on interpretation as the activity that yields semantic content and construction as the activity that yields legal content. But there is a possible misunderstanding that can be introduced by this way of putting things--because it focuses attention on judicial constructions of the constitutional text that typically yield constitutional doctrines as their outputs. But as Keith Whittington and Jack Balkin note, "construction" also refers to political activities--e.g., the constructions of the constitution that occur outside of the courts and which are frequently institutionalized in the form of legislation. I agree with this understanding of the scope of construction--and as far as I could tell, so did Barnett, Balkin, and Whittington. Moreover, all four of us seemed to agree that constructions could occur in the courts in the form of constitutional doctrines--Barnett is clear about this, Whittington seemed to agree with this in the colloquy, and Balkin's writings seem to imply this.

The discussion was quite valuable for me, because it suggests that I need to modify my explication to make the basis for this agreement clear!

For a quick introduction to the distinction, see Legal Theory Lexicon 063: Interpretation and Construction.

Full post as published by Legal Theory Blog on February 11, 2010 (boomark / email).