The interpretation-construction distinction.

• Author: Solum, Lawrence B.

INTRODUCTION

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. (1) I shall argue that the distinction is both real and fundamental--that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly. (2)

The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation--which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction--which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words "interpretation" and "construction" that express the distinction) could vary, legal theorists cannot do without the distinction.

One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction--that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself.

Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, "What is interpretation?" and "What is construction?" In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensible.

2. TWO PRELIMINARY SETS OF IDEAS

   Before we get to the distinction itself, we need to examine two related distinctions. The first of these is the distinction between vagueness and ambiguity; the second distinction is between semantic content and legal content.

   1. VAGUENESS AND AMBIGUITY

      When we communicate via language (written or oral), we use words and phrases that can be formed into complex expressions using the rules of syntax and grammar. Sometimes the smallest meaningful unit of expression is a single word; sometimes, whole phrases carry meanings that cannot be decomposed into the meaning of constituent words. But whatever the relevant unit of meaning might be (words, phrases, sentences, or whole utterances), texts can be either vague or ambiguous.

      In ordinary speech, the distinction between vagueness and ambiguity is not always observed. The two terms are sometimes used interchangeably, and, when this is the case, they both mark a general lack of what we might call "determinacy" (or "clarity" or "certainty") of meaning. But the terms "vague" and "ambiguous" also have technical (or more precise) meanings, such that there is a real difference in their meaning. (3)

      In the technical sense, ambiguity refers to the multiplicity of sense: a term is ambiguous if it has more than one sense. A classic example is the word "cool." In one sense "cool" means low temperature, as in "the room was so cool we could see our breath." In another sense, "cool" means something like hip or stylish, (6) as in "Miles Davis was so cool that every young trumpet player imitated him# And "cool" has several other senses--referring to temperament or self-control, to certain colors, and a lack of enthusiasm (or the presence of skepticism or mild hostility).

      The technical sense of vagueness refers to the existence of borderline cases: a term is vague if there are cases where the term might or might not apply,s A classic example is the word "tall." In one sense, "tall" refers to height (of a person or other entity) that is higher (in some way or to some degree) than average. Abraham Lincoln was tall: at almost 6'4" he was certainly tall for an adult male of his time. Napoleon was not tall, although at 5'6" he was of average height for his time. There are persons who are clearly tall and clearly not tall, but there are also borderline cases. For example, in the United States in the twenty-first century, males who are 5'11" or 5'10 1/2" are neither clearly tall nor clearly not. Finally, a given word or phrase can be both vague and ambiguous. "Cool" is ambiguous, and, in the temperature sense, it is also vague.

      Getting ahead of ourselves for a moment, ambiguities in legal texts can (usually) be resolved by interpretation, but constitutional vagueness always requires construction.

   2. SEMANTIC CONTENT AND LEGAL CONTENT

      The second preliminary distinction that we need to make is between semantic content and legal content. Legal texts" that are currently valid in an actual legal system that is currently in force (10) have both kinds of content. The semantic content of a legal text is simply the linguistic meaning of the text. For example, the First Amendment freedom of speech has a linguistic meaning, associated with the meanings of the constituent words and phrases--"Congress," "shall make," "no," "law," "abridging," "the freedom of speech," and further specified by the conventions of syntax and grammar that allow these words and phrases to be combined into a meaningful whole. This same provision is the source of legal content that is not identical to its semantic content. As examples, consider the following doctrines that are connected to the First Amendment: (1) the prior restraint doctrine, (2) the rules that define the freedom of speech doctrine governing expression via billboards, and (3) the distinction between content-based regulations and content-neutral time, place, and manner restrictions. (11) These three rules are part of the legal content of free-speech doctrine, but these doctrines are not part of the linguistic meaning of the expression "Congress shall make no law abridging the freedom of speech." (12)

      Although I believe this point about the difference (between the linguistic meaning of the text and the legal effect that text is given by free speech doctrine) is obvious, it might be misunderstood. The point that I am making is that the text of the First Amendment says nothing about "billboards," "prior restraint," "content," or "time, place, and manner." These doctrinal ideas are not found in the linguistic meaning or semantic content of the text. The claim that the semantic content of the First Amendment does not contain this legal content does not (logically or conceptually) imply the further claim that the legal content of these doctrines cannot be derived from an appropriate theory of the purpose of the freedom of speech. Sometimes the word "meaning" is used to refer to the purpose of a legal text, but that sense of the word "meaning" is not the same as linguistic meaning.

      One characteristic of semantic content is especially important: the linguistic meaning of a text is a fact about the world. The meaning of written or oral communication is determined by a set of facts: these facts include the characteristics of the utterance itself--what marks appear in the writing?--and by facts about linguistic practice--how is that word used?-- and--what are the 'rules' (or regularities) of syntax and grammar? The linguistic meaning of an utterance cannot be settled by arguments of morality or political theory. (13) For this reason, it would involve a category mistake to argue directly for a conclusion about the linguistic meaning of an utterance on the basis of a moral premise.

      Once again, we can jump ahead: interpretation yields semantic content, whereas construction determines legal content or legal effect.

3. INTERPRETATION AND CONSTRUCTION

   We have now distinguished ambiguity from vagueness and semantic content from legal content; these two preliminary moves set the stage for articulating the distinction between interpretation and construction.

   1. WHAT IS INTERPRETATION?

      The interpretation-construction distinction reentered general legal theory in the context of debates over constitutional practice via the work of what are sometimes called the "New Originalists," particularly Keith Whittington (14)M and Randy Barnett. (15) As I discuss the distinction, I will use constitutional interpretation and construction in an illustrative context, but the distinction itself applies whenever an authoritative legal text is applied or explicated.

      In general, interpretation recognizes or discovers the linguistic meaning of an authoritative legal text. Contract interpretation yields the linguistic meaning of the contract. Patent interpretation yields the semantic content of the patent claims. Statutory interpretation yields the linguistic meaning of statutory texts.

      Because my own work on the interpretation-construction distinction occurs mostly in constitutional theory, I will use the text of the United States Constitution as...