Contracts, Constitutions, and Getting the Interpretation-construction Distinction Right

PAPERS

Contracts, Constitutions, and Getting the

Interpretation-Construction Distinction Right

GREGORY KLASS*

ABSTRACT

Interpretation determines the meaning of a legal actor’s words or other sig-

nif‌icant acts, construction their legal effect. Using contract law and two nine-

teenth century theories of constitutional interpretation as examples, this Article

advances four claims about interpretation, construction, and the relationship

between the two. First, many theorists, following Francis Lieber, assume that

rules of construction apply only when interpretation runs out, such as when a

text’s meaning is ambiguous or does not address an issue. In fact, a rule of con-

struction is always necessary to determine a legal speech act’s effect, including

when its meaning is clear and def‌inite. Construction does not supplement inter-

pretation, but compliments it. Second, there exists more than one form of inter-

pretation, and correspondingly more than one type of meaning. The meaning a

text or other speech act has depends on the questions one asks of it. Third,

which type of meaning is legally relevant depends on the applicable rule of con-

struction. Rules of construction are in this sense conceptually prior to legal

interpretation. This priority has important consequences for how legal rules of

interpretation are justif‌ied. Finally, because there exist multiple types of mean-

ing, when one form of interpretation runs out, another form might step in.

Whether that is so again depends on the applicable rule of construction.

These four claims apply to legal interpretation and construction generally.

This Article supports them with a close examination of the interpretation and

construction of contractual agreements. It then argues that this account of inter-

pretation and construction illuminates the shared structure of Joseph Story’s

and Thomas Cooley’s theories of constitutional interpretation, and by extension

theories of constitutional interpretation generally.

TABLE OF CONTENTS

I. BASIC CONCEPTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

* Agnes N. Williams Research Professor, Professor of Law, Georgetown University Law Center. I

am grateful from the questions and feedback I received from Jud Campbell, John Mikhail and Larry

Solum, as well as other participants at the 2018 Salmon P. Chase Faculty Colloquium & Lecture, Center

for the Constitution, at Georgetown University Law Center. © 2020, Gregory Klass.

13

II. INTERPRETATION AND CONSTRUCTION IN CONTRACT LAW . . . . . . . 17

A. Construction Does Not Supplement Interpretation, but

Complements It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. There Are Multiple Meanings of “Meaning,” Which

Correspond to Multiple Types of Interpretation . . . . . . . . . . . 22

1. Whose Meaning Governs? . . . . . . . . . . . . . . . . . . . . . . . 24

2. What Type of Meaning Governs? . . . . . . . . . . . . . . . . . . 26

3. What Facts Determine the Legally Relevant Meaning? . . 28

4. The Interplay Between the Three Questions . . . . . . . . . . 30

C. Because Legal Interpretation Serves Construction, the

Applicable Rule of Construction Determines the Correct Rule

of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

D. When One Type of Interpretation Runs Out, Another Type

Might Step in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

III. INTERPRETATION AND CONSTRUCTION IN CONSTITUTIONAL LAW:

JOSEPH STORY AND THOMAS COOLEY . . . . . . . . . . . . . . . . . . . . . . 34

IV. THE FIXATION THESIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

The interpretation-construction distinction is back. Contract scholars have long

recognized the difference between deciding what words mean, or interpretation,

and determining their legal effect, or construction. But in the last decade constitu-

tional scholars have begun to attend to the difference as well. New Originalists

like Randy Barnett, Jack Balkin, and Larry Solum have deployed the distinction

to divide constitutional questions into two broad categories.

1

The f‌irst comprises

questions that originalist interpretation can answer. These include easy questions,

like how old a person must be to serve as President—“the Age of thirty f‌ive

Years”

2

—and perhaps also harder ones, such as the scope of “the right of the

People to keep and bear arms.”

3

In the second category are questions that the

text’s original meaning does not answer, such as the reach of “freedom of

speech,” “due process of law” and other vague constitutional terms.

4

Questions in

this latter category occupy a “construction zone,” a region where interpretive

1. See, e.g., Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment.

95 (2010); Randy Barnett, Interpretation and Construction, 34 HARV. J.L. & PUB. POL’Y 65 (2011);

Jack M. Balkin, The New Originalism and the Uses of History, 82 FORDHAM L. REV. 641 (2013).

2. U.S. CONST. art. II, § 1.

3. U.S. CONST. amend. II.

4. U.S. CONST. amend. I & V.

14 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:13

rules and original meaning must be supplemented with other legal rules or princi-

ples to determine what the Constitution requires.

5

To those of us who f‌ind the distinction between interpretation and construction

helpful, the new attention from constitutional theorists is exciting. Contract schol-

ars discussing the difference between interpretation and construction never

claimed it applied only to the law of contracts. In fact, the concepts f‌irst appeared

in Francis Lieber’s more general 1839 work, Legal and Political Hermeneutics,

which barely touches on contract law.

6

So it is good to see the ideas being taken

up by scholars elsewhere.

At the same time, the new champions of the distinction have taken it in direc-

tions a contracts scholar might f‌ind surprising. The New Originalists divide con-

stitutional questions between a zone of interpretation and a zone of construction.

Although textualist approaches to contract interpretation have had many cham-

pions, few would claim that parties’ contractual obligations can be determined

only by interpreting their words. No matter how clear and unambiguous the par-

ties’ language, a court will not enforce an agreement that is unconscionable,

against public policy, the result of fraud, mistake or duress, or in which a party

lacked capacity. There is no contractual interpretation zone. By the same token,

the idea of a construction zone is not native to contract law. Construction is ubiq-

uitous in the determining parties’ contractual obligations. The New Originalist

divide between an interpretation zone and a construction zone does something

new and different with the concepts.

This Article examines the interpretation-construction distinction from the per-

spective of contract law. I make four claims about the activities of interpretation

and construction and the relationship between them. First, construction happens

not only when interpretation runs out, but is always necessary to determine a text

or other meaningful act’s legal effect. Construction does not supplement interpre-

tation but complements it. Second, there are multiple forms of interpretation and

multiple types of meaning. What meaning a text or other speech act has depends

on the questions one asks of it. Third, which type of meaning is legally relevant

depends on the applicable rule of construction. Rules of construction are in the

law conceptually prior to rules of interpretation. Finally, because a single text can

have multiple types of meaning, when interpretation of one type runs out, inter-

pretation of another might step in. Whether that is so again depends on the appli-

cable rule of construction.

Although I make the case for these four claims with reference to the law of

contract, they apply to legal exegesis generally. I use the occasion of the

Georgetown Center for the Constitution’s 2018 Salmon P. Chase Faculty

5. See, e.g., Solum, supra note 1 at 108.

6. FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS, OR PRINCIPLES OF INTERPRETATION AND

CONSTRUCTION IN LAW AND POLITICS (enlarged ed. 1839/1970).

2020] CONTRACTS AND CONSTITUTIONS 15