The constitutional interpretation/construction distinction: a useful fiction.

• Author: Cisneros, Laura A.
• Position: Travel narrative

INTRODUCTION

Since the 1990s, theories of constitutional interpretation have experienced a sea change. Some scholars have claimed that the old debate between originalism and nonoriginalism has gone by the wayside and that it is less accurate nowadays to describe the differences between these theories of American constitutional interpretation in terms of originalism and "non" anything. (1) Others have suggested that the differences are better conceived of in terms of variations within the originalism family. For example, Jeffrey Rosen in 1997 exclaimed, "We are all originalists now." (2) More recently, that notion was repeated by some (3) in response to the Supreme Court's decision in District of Columbia v. Heller. (4) Even so, not all agree. (5)

Ultimately, differences between originalism and nonoriginalism remain. (6) In fact, not only are there a wide range of alternatives to originalism, (7) there are a number of variations within originalism itself. (8) New Originalism has emerged as one such variation. One of the fundamental distinctions between Old and New Originalism is that the former tended to focus on the original intentions of the authors of a particular legal text whereas the latter tends to focus on the "original public meaning" of the particular legal text, which is the meaning that the intended audience would have assigned to a given word, phrase, or sentence at the time it was drafted. (9) The full contours of New Originalism as distinguished from Old Originalism are beyond the scope of this paper. Generally speaking, however, New Originalism explains the theory of American constitutional interpretation as something of a dual process: First, one must look to the original public meaning (interpretation) and when that runs out, look to other sources that might reliably fill out the contours of that interpretation (e.g., history and tradition surrounding the text, the structure of the text, court precedent, etc). (10) The second part of this process is what is often referred to as "construction."

This is unobjectionable so far as it goes. It suggests that the break from Old to New Originalism was something of a natural development. Think about it: the originalism that thrived in the 1960s through the mid-1980s concentrated on (at least) two commitments: (1) pushing against the doctrinal developments of the Warren Court and (2) constraining judicial activity by limiting judicial discretion. (11) By the early 1990s, the transition from the Burger Court to the Rehnquist Court made the judicial opinions that old originalists were railing against less frequent, thereby making these two commitments less necessary. (12) What surfaced afterward and replaced the commitment to subverting "activist" theory (and practice) was a need to develop a positive constitutional doctrine that was (1) based on the text of the Constitution and (2) capable of guiding the actual activities of federal judges. Indeed, as conservatives came to dominate the Supreme Court, originalism needed to provide a workable theoretical foundation to support majority opinions, i.e., create a constructive governing philosophy. To a large extent, I think New Originalism in general, and the constitutional interpretation/construction debate in particular is responding well to that call. However, it is hardly an effort without strife, both internal and external. Even among New Originalists, the debate over where interpretation ends and where construction begins is contested, as is the battle over whether the judiciary plays a dominant role or subservient role in the construction effort.

The source of the conflict, ironically enough, is located in a theoretical position that nearly all New Originalists share--namely, that constitutional interpretation requires some degree of judgment. The interpretation/construction distinction admits that at a certain point interpretation (original public meaning) exhausts itself and can no longer provide the linguistic cues necessary to explain the text or guide our application of it, and that when original public meaning runs out, constitutional meaning must be constructed through the exercise of judgment.

Recent work discussing the distinction displays a range of attitudes with respect to who gets to make the judgment and the form that judgment should take. Some writers have expanded the debate beyond the originally offered definitions for "interpretation" and "construction" and argue that "construction" has little to do with finding textual meaning at all, but rather is related solely to the implementation of policy and constitutional decisions--i.e., a purely political activity. Others have asserted that the distinction between interpretation and construction does not capture a real difference--that the two activities are so intertwined as to be inseparable, that they are connected phases of a single task. As I will discuss below, I tend to pitch my tent in the second camp and view the line between interpretation and construction as artificial, as it defies all practical attempts to draw it consistently from case to case. No one has developed a formula for predictably discerning between the two activities and it is doubtful that such a formula, if devised and presented, would win more than minority support among constitutional scholars.

Nevertheless, I think the distinction is important, in that it reminds theorists of the dual nature of constitutional interpretation--between what the Constitution means and how the Constitution can be implemented. This is a distinction which should not be overlooked or conflated. Ultimately, the distinction may only prove useful in trying to figure out what the Court is doing rather than trying to figure out what the Court should do. Still, by incorporating actual judicial activity into the theoretical discussion of American constitutional interpretation, the interpretation/construction distinction appropriately highlights two key areas for further analysis: how to determine what the Constitution means (i.e., document fidelity) and how a particular institutional actor can implement that meaning (i.e., institutional obligation). Against this backdrop, this Article argues that the constitutional interpretation/construction distinction is a fiction, but a useful one in constitutional law.

Part I briefly describes the interpretation/construction distinction as an artificial construct--a fiction. (13) The many commentaries on the subject encompass such a wide range of positions that the distinction, to the extent it truly exists at all, does so in the eye of each individual beholder. In Part II, I argue that the distinction, even if understood as a fiction, is nevertheless relevant because it can be used to bridge the expanse between originalist and nonoriginalist (or, if one prefers, between "strong" and "weak" originalist) theories of American constitutional interpretation. Put another way, the fiction is useful. In Part III then, I turn to the idea of usefulness. Focusing on how the distinction may be relevant, I suggest that maintaining a distinction between interpretation and construction is ultimately positive because it offers a new language system in which to continue a more meaningful debate between different interpretive theories. In other words, the appeal of the distinction is its ability to move constitutional commentary away from ideological entrenchment to a more meaningful discussion about both the process and substance of constitutional adjudication.

1. THE INTERPRETATION/CONSTRUCTION DISTINCTION AS FICTION

   In the 1990s, some constitutional theorists began to craft a distinction between constitutional interpretation and constitutional construction, and this work has received renewed interest of late, although even those who claim to see this distinction disagree on exactly what it is. Some frame the distinction as a bright line between two distinct activities. Larry Solum, for example, defines the distinction as follows: "Interpretation is the activity that aims to recover the linguistic meaning (or semantic content) of a legal text. Construction is the activity that aims to produce juridical meaning (or legal content) that IS authorized by a legal text." (14) Thus, for Solum, interpretation is a kind of archaeology in which the meaning of the words and phrases of the Constitution is determined through a close reading of the text, which itself is informed by a strong knowledge of the language as it was used at the time of composition. Construction, by contrast, is something altogether different. In Solum's view, construction is what happens when judicial and non-judicial actors take the product of the interpretation enterprise--i.e., the recovered meaning of the text--and then implement that meaning through legal rules that govern everyday social and political life. Note also that, for Solum, judges are intimately involved in the construction effort.

   Keith Whittington also presents interpretation and construction as two distinct activities, but he divides up the tasks a little differently. His early work drew a sharp line between the two activities and argued that courts were principally responsible for and should be limited to interpretation, while the political branches were principally responsible for and should direct constitutional construction. (15) Whittington's later work eased up on the force of this initial argument. He now acknowledges that courts have a role to play in constitutional construction, but that the supremacy of those judicial constructions are ultimately permitted to exist through the grace of the political branches who use judicial construction as a mechanism for political advantage. (16) For example, if political actors want "cover" on an unpopular issue, they can express their personal view on the issue itself, while maintaining their commitment to enforce the decisions of the Court as the law of the land. The...