Constructing a new American constitution.

• Author: Whittington, Keith E.

Problems of constitutional interpretation have occupied a prominent part of the scholarly agenda for quite some time, and rightly so. Theories of constitutional interpretation help guide and legitimate the work of the judiciary. They grapple directly with what the courts say they do and with many of the issues that lawyers routinely face. Understanding what should be interpreted, how it should be interpreted, and who has the authority to interpret are all important and basic to the constitutional enterprise. (1)

Interpretation is not all that we do with constitutions, however. Interpretive practice is supplemented through a process of constitutional construction. Constitutional scholarship has given increasing attention to the idea of construction as a feature of the constitutional enterprise that is distinct from interpretation and that is worthy of analysis in its own right.

In this Article, I reintroduce the concept, clarify a couple of features of the idea of constitutional constructions as I understand it, and suggest some possible benefits of constructions as a conceptual tool. The Article proceeds first by discussing what constitutional construction is and how it relates to constitutional interpretation. Part II considers the extent to which courts engage in constitutional constructions. Part III considers whether it is possible to avoid constitutional constructions. The Article concludes by suggesting ways in which the concept can be useful to various scholarly literatures.

1. WHAT IS A CONSTITUTIONAL CONSTRUCTION?

   Constitutional construction is one mechanism by which constitutional meaning is elaborated. It works alongside constitutional interpretation to elaborate the existing constitutional order. The process of constitutional construction is concerned with fleshing out constitutional principles, practices and rules that are not visible on the face of the constitutional text and that are not readily implicit in the terms of the constitution.

   We can imagine a continuum of actions that political actors can take under a Constitution, ranging from policymaking to revolution. At one end of the continuum, political actors can take constitutional forms as a given and make policy decisions under it, filling government offices and exercising government power in (constitutionally) noncontroversial ways. Policymaking seeks to exercise constitutional authority, and its implications for elaborating or altering constitutional meaning are only implicit. At the other end of the spectrum, political actors can engage in revolution and replace the existing constitutional order or document wholesale in favor of a new one. The Articles of Confederation can be displaced in favor of the U.S. Constitution. Less extreme than revolution is creation, which adds new text to a preexisting Constitution. Creation embraces a revisionary authority, but the revisions are partial rather than total. They amend and reform the Constitution, rather than throw it over. (2)

   Interpretation and construction are both concerned with elaborating, developing and effectuating the preexisting Constitution. Unlike the mere policymaker, the interpreter or constructor engages the Constitution directly and attempts to address and resolve contested claims about constitutional meaning. But political actors engaged in these tasks do not claim the authority to revise, amend or alter the Constitution. They claim only the lesser authority of attempting to understand and realize the Constitution as they found it.

   Construction lies closer along the continuum to the process of creation, however. Construction picks up where interpretation leaves off. Interpretation attempts to divine the meaning of the text. (3) There will be occasions, however, when the Constitution as written cannot in good faith be said to provide a determinate answer to a given question. This is the realm of construction. The process of interpretation may be able to constrain the available readings of the text and limit the permissible set of political options, but the interpreter may not be able to say that the text demands a specific result. Further judgments, further choices, about how to proceed within those bounds are made through the process of construction. Constitutional meaning is no longer discovered at that point. It is built.

   But constitutional constructions are built within the boundaries, or to use Jack Balkin's phrase, within the framework, of the interpreted Constitution. (4) They partake of the process of constitutional creation in the sense that constructions are necessarily creative, but not in the sense that they have the authority to revise the constitutional text or the discoverable meaning of that text. The process of construction takes over when the traditional tools of interpretation exhaust themselves. In order to do so, those who construct constitutional meaning must lean more heavily on external considerations to bring determinacy to what interpretative arguments leave indeterminate. Put differently, constitutional constructions make normative appeals about what the Constitution should be, melding what is known about the Constitution with what is desired.

   Constructions are, by their nature, temporary. An interpretation of a text attempts to capture the true meaning of the text. Any interpretation will be revisable in light of later argument and evidence. Any interpretation is likely to be partial, since it will be motivated by a particular question and controversy, and thus may highlight some features of constitutional meaning while pushing others into the background. Interpretations aim to be accurate extensions of the fixed text. Interpretations should, therefore, be enduring except to the extent to which there is more to be said about them or they can be made more accurate. By contrast, constructions are meant to settle indeterminacies to the satisfaction of immediate political interests. Constructions involve judgments and choices about how best to resolve those indeterminacies. Those choices can be revisited without disturbing the constitutional text itself or the discoverable meaning of the constitutional text. If a construction no longer serves the interests or expresses the values of important political actors, then it can and often will be revisited. A successful constitutional construction may span centuries, or merely a political generation. We currently think we know the answer to such basic questions as whether a state has a right to secede from the union or whether the Senate's "advice and consent" function can be exercised entirely through post-negotiation treaty ratification or whether presidents can appropriately veto legislation on policy grounds, but those answers depend on settlements that could, in the right circumstances, be undone. Those constitutional resolutions may be venerable, but they reflect contingent choices made within the constitutional framework not essential requirements of the Constitution itself.

   Let me give three illustrative examples of situations in which constructions might play a role in constitutional practice. This set of examples is not intended to be exhaustive, but to clarify what constructions are and how they fit within the continuum of actions that can be taken under a Constitution) In particular, the examples highlight the relationship between interpretation and construction. Constructions occur in the context of textual vagueness, constitutional gaps, and constitutional inspirations.

   First, constitutional vagueness occurs when there is uncertainty as to where exactly the boundaries of a constitutional rule, standard or principle might be. Some constitutional rules may have precise boundaries, leaving little uncertainty or vagueness about what is covered by the rule and what is excluded. Others may have indeterminacies at their boundaries. Interpretation may be able to help specify what rule a constitutional provision seeks to convey and identify the core meaning of a term, but the meaning of a term as it might apply in more marginal contexts may be underdetermined.

   A number of constitutional provisions and principles are vague to some degree. They have a clear core of meaning, which provides ready answers for many questions about how the provisions ought to be applied. Interpreters would be capable of recognizing government actions that are permissible and those that are impermissible. But some questions, including some questions of immediate political importance, might fall in between, where it is unclear whether government action is permissible or impermissible. We might, for example, agree with many nineteenth-century commentators in thinking that the Interstate Commerce Clause had clear and determinate meaning about some things. Commercial transactions across state boundaries and the transportation of economic goods across state boundaries were within the core meaning of interstate commerce. They were "paradigm cases" of the rule embodied in the commerce clause. (6) On the other hand, commentators widely agreed that the federal regulation of manufacturing was outside the bounds of the Interstate Commerce Clause. Between these two areas of relative interpretive clarity were areas of relative indeterminacy. Did, for example, the Interstate Commerce Clause by implication disempower the states from interfering with interstate commerce? When did goods pass from the realm of interstate commerce to the realm of intrastate commerce? Once the limits of interpretation are reached, further textual analysis or historical inquiry or structuralist argument may provide grist for the mill...