Constitutional construction is the part of constitutional interpretation in which interpreters implement and give effect to the Constitution--for example, by creating doctrines, practices, and institutions. The idea of constitutional construction is central to the New Originalism, which divides constitutional interpretation into two tasks. Interpretation (in the narrower sense) ascertains the text's original meaning; construction implements the text, giving it effect in practice. (1) What most people call constitutional interpretation includes both interpretation, in the narrower sense of ascertaining the meaning of the text, and constitutional construction, which creates and applies doctrines and practices that implement the Constitution. (2)
The distinction between interpretation and construction highlights an important problem in constitutional theory. What authorizes constructions of the Constitution that may be consistent with the text but are not required by the text? For example, the Supreme Court's decision in New York Times Co. v. Sullivan (3) created a constitutional privilege that requires public officials suing for defamation to prove "actual malice." (4) Sullivan purports to follow from the text of the First Amendment. (5) But this construction of the First Amendment is by no means the only possible rule that is consistent with the text. (6) So what makes the rule of New York Times Co. v. Sullivan a good--much less the best--construction of the Constitution?
Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project. The second is a set of rhetorical techniques for analyzing problems and devising legal arguments, techniques that originated in the common law.
Lawyers and politicians adapted common law techniques for interpreting legal texts to the U.S. Constitution once it became a legal document. American lawyers still employ descendants of these techniques today. These techniques are what classical rhetoric calls topoi or "topics" that are characteristic of American constitutional law. These topics are tools for analyzing legal problems and generating legal arguments. They involve commonplace but incompletely theorized justifications for constitutional interpretation. They help interpreters perform the work of constitutional construction.
The point of understanding constitutional construction in terms of topics is not to put an end to disputes about contested questions of constitutional law. Legal disputes will continue as long as our Constitution continues to function. The point, rather, is that constitutional interpretation rests on shared rhetorical techniques and commonplaces about interpretation. Constitutional topics structure constitutional argument in our legal culture. They connect the text of the Constitution to its implementation. And they allow people with very different views to argue that their proposed interpretations are faithful interpretations of the Constitution and further the Constitution.
CONSTRUCTION IS INEVITABLE
All theories of constitutional interpretation must account for constitutional construction in one form or another, whether they are originalist or non-originalist, and whether or not they recognize the idea of constitutional construction. The distinction between interpretation and construction merely makes this problem especially salient.
In some versions of originalism--for example, in the New Originalism--the importance of construction is obvious. My own theory of "living originalism" or "framework originalism," for example, argues that the object of constitutional interpretation (in the narrower sense) is the Constitution's basic framework. The basic framework consists of the Constitution's original public meaning plus the text's choice of rules, standards, and principles. (7) The original public meaning consists of the original semantic meaning of the text, plus any generally recognized legal terms of art, and any inferences from background context necessary to understand the text. Constitutional construction builds on and implements the basic framework. (8) Most disputed questions of constitutional law involve construction.
This is a relatively thin version of original public meaning. The thicker the account of original meaning, the narrower is the zone of constitutional construction. The thinner the account, the more questions must be decided in the construction zone. (9) The most important distinction in originalist theory, therefore, is not whether one should follow original intention, original understanding, or original meaning. It is how thin or thick is one's account of original public meaning, and therefore how often one must turn to construction to answer contested constitutional questions.
Some forms of originalism deny any role for construction. (10) Everything is a question of interpretation that, in theory, can be derived from a close inspection of original public meaning. But these forms of originalism still must account for the role of precedent, for applications to new facts and circumstances, for long-standing custom, for the development of conventions of practice (including whether and when to accept them), and for doctrinal elaboration and evolution of the Constitution." Grappling with these issues is an inevitable result of attempting to implement a Constitution over time.
This is not simply a question of what to do with non-originalist precedents decided by non-originalist judges--the central focus of most originalist writing on the question. (12) The point, rather, is that even if all courts always attempt in good faith to apply the original meaning in changing circumstances, there will likely be reasonable disagreements about the best account of the Constitution's meaning and how to implement that meaning in practice. Later courts must then decide whether to defer to earlier views. (13)
Suppose, for example, that a court decides that a new technology involves or does not involve a "search or seizure" affecting "persons, houses, papers and effects" covered by the Fourth Amendment. Or suppose that a court decides that a new technology involves or does not involve "speech" or "press" protected by the First Amendment. Should later courts decide the issue of original meaning afresh each time they consider a new case involving the First and Fourth Amendments? Or should they defer to and reason from the previous determination of the Constitution's meaning, unless there are very good reasons to abandon it? The latter approach is more consistent with American practice. One could generate similar examples for many different parts of the Constitution. Therefore, much as originalists may try to avoid the term "construction," they must engage in something like it to implement the Constitution in practice.
Non-originalists also try to dispense with the distinction between interpretation and construction, but for the opposite reason. They do not recognize original meaning as having a special legal status in interpretation. Hence for non-originalists, all constitutional interpretation is a kind of construction, with original meaning forming one consideration among many others.
CONSTRUCTION IS AN ENGINE OF CONSTITUTIONAL CHANGE
People often imagine the distinction between interpretation and construction as a division between two separate tasks. But the idea of construction is important for a second reason: it also reflects a division of labor among different institutions. This division of labor generates constitutional change over time.
Both judges and the political branches (including state and local government officials) engage in constitutional construction. Constitutional construction by different branches of government generates different kinds of constitutional development. When judges engage in construction, the result is a sequence of decisions and doctrine. When the political branches engage in construction, the result is a series of laws, administrative regulations, political conventions, and institutions.
The political branches assert that their constructions are faithful to the Constitution. Often these assertions are controversial. Throughout American history, people have challenged the constitutionality of political branch constructions before the judiciary. When this happens, the judiciary decides whether these constructions are consistent, partially consistent, or inconsistent with the Constitution. Judges apply the Constitution's text and judicial constructions to decide these questions, producing new constitutional constructions in the process. Some political branch constructions, however, are never challenged before the judiciary, or the judiciary refuses to consider the challenges, because of judicial constructions about the role of the judiciary and the separation of powers.
Thus, the American system of constitutional development involves competing constructions that interact through struggles between the various branches (and levels) of government, and especially through the process of judicial review. This ongoing process of interaction between the political branches and the judiciary is the dialectic of construction. (14) It is a dialectic because both the judiciary and the political branches assert that their constructions are faithful to the Constitution, and the interaction between them affects the development of constructions by both sides.
The continuous process of construction by the political branches and the judiciary, and their interactions over time, generates constitutional development. Any theory that recognizes constitutional construction or its equivalent must also recognize that significant elements of the Constitution-in-practice change over time. That is why I have argued that originalism and living constitutionalism are two sides...