Tuesday, January 12, 2010

The Interpretation/Construction Distinctions

Mark Graber

Much constitutional theory over the past decade has emphasized a distinction between constitutional interpretation and construction. This distinction seems to have first appeared in the common law. Judges in the early nineteenth century distinguished between interpreting and constructing a contract. The distinction partly migrated to constitutional law, most notably in the writings of Francis Leiber. Most Supreme Court justices at the time, however, did not rely rigorously on the interpretation/construction distinction. More recently, Keith Whittington’s seminal studies of constitutional theory revived the interpretation/construction distinction. That distinction now plays a role in the work of such important scholars as Lawrence Solum and Randy Barnett.

The interpretation/construction distinction is of sufficient importance to merit a panel at the most recent American Association of Law Schools meeting. On the one hand, the panel was excellent. My complements to Professors Lawrence Solum, Rod Hills, Mitch Berman, John McGuiness, Ian Batrum, and Laura Cisneros. Constitutional Commentary will soon have a fascinating issue. On the other hand, I was left wondering whether the panelists were actually talking too each other. A large number of any interpretation/construction distinctions exist. Commentators easily slip from one to another. Below are a few that I spotted either during the panel or when doing independent reading.

The interpretation/construction distinction is about certainty.

Version 1: Interpretation takes place when the meaning of the constitution is clear (by any broadly accepted theory of constitutional interpretation). Construction takes place when the meaning of the constitution is contested.

Version 2: Interpretation takes place when persons claim that they have discovered the objective right answer to what the constitution or a constitutional provision means, however difficult the investigation may have been. People construe the constitution when they admit that their answer is not objectively correct.

Version 3: People who believe that right answers exist to hard constitutional questions (think Ronald Dworkin) engage in interpretation, even if they admit that cannot presently demonstrate to all rational minds that their present answers are correct. People who deny right answers exist to hard constitutional questions engage in construction.

The interpretation/construction distinction is about meaning or methods.

Version 4: Interpretation takes place when we look for the original meaning of the constitution. All other forms of constitutional analysis engage in construction

Version 5: Originalists engage in interpretation, even when they focus on original intentions, expectations or methods. All other forms of constitutional analysis engage in construction.

Version 6: Persons concerned with the linguistic meaning of the constitution engage in interpretation. Persons concerned with other kinds of meaning engage in construction.

The interpretation/construction distinction is tied to institutions.

Version 7: Courts as a matter of history have engaged in interpretation. Non-judicial officials as a matter of history have engaged in construction.

Version 8: Courts may only interpret the constitution. Elected officials are free to construe the constitution.

Version 9: By definition, courts interpret and elected officials construe.

The interpretation/construction distinction is about the difference between meaning and implementation

Version 10: Interpretation takes place when we look for the meaning of the constitution. Construction takes place when we try to operationalize that meaning into principles of constitutional law.

Most versions of the distinction combine different versions, so altogether about 50 practical versions of interpretation/construction probably exist. Rather confusing, given that the different versions of distinction are aimed at different problems. The best solution I can offer is that we might do better starting with the problems (what is the role of courts in a constitutional democracy; how should we read constitutional language, etc) than with first making the distinction between construction and interpretation and then determining what problems that distinction might solve.


This attempted distinction between the two has always struck me as a frivolous waste of time, a semantic game. We should be debating the substance of how to understand a contract/statute/constitution, not spending time on scholastic analysis of terms.

I'll have to reread Chapter III of Francis Lieber's "Legal and Political Hermeneutics Or Principles of Interpretation and Construction in Law and Politics." I have the 1880 Third Edition. (The Second Edition was published in 1839.) Lieber has been attracting attention in recent years. I bought this book at a Boston Morgan Memorial store back around 1952, in my second year of law school at a cost of 50 cents and have referred to it from time to time, especially when hermeneutics resurfaced in the search for the Holy Grail of constitutional interpretation post Ed Meese. One of the reasons I bought the book was that it had been part of the library of the Boston law firm Brandeis, Dunbar & Nutter.

I've posted extensive comments on Mark's post on Legal Theory Blog:

In my opinion, perhaps the best treatment of questions of "interpretation" and "construction" is provided by Aharon Barak in his Purposive Interpretation in Law (2005). Within the rubric of "purposive interpretation" he treats linguistic and semantic issues (as Barak explains, many canons for understanding 'legal language' are more strictly about grammar, syntax or semantics, thus NOT for the determination of legal meaning proper), purposive questions (ratio juris, legal doctrines, etc.), and discretion (on the part of judges). His theoretical model is holistic insofar as he relates these various components in an integral fashion while fully appreciating the respective distinctions between, say, semantics and legal doctrine. This book is unusually pellucid in systematically and sensitively dealing the various concerns that animate the numerous uses of the interpretation and construction distinction while at the same time integrating those concerns within a larger rubric that accords priority to what Graber has here termed "problems."

The words of praise accorded Barak's theory of purposive interpretation by Frederick Schauer and Frank Michelman on the back of book's jacket are well deserved (hence shorn of the usual hyperbole). Given the persistence and quality of not a few of the current positions and debates, I suspect this work is not widely read (or perhaps the more ideologically recalcitrant are not susceptible to persuasion by sound argument).

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