THE POWER OF INTERPRETATION: MINIMIZING THE CONSTRUCTION ZONE.

• Author: McGinnis, John O.

INTRODUCTION 920 I. CONSTRUCTION: ITS RISE AND DISCONTENTS 925 A. The Origins and Definition of Construction in Modern Constitutional Theory 925 B. The Utility of Construction and the Construction Zone: An Affirmation and Some Caveats 930 C. The Relation Between Interpretation and the Construction Zone 932 II. THE LANGUAGE OF THE LAW AS A RESOURCE FOR DETERMINACY 935 III. RESOLVINC DIFFERENT CATEGORIES OF LEGAL INDETERMINACY 940 A. Ambiguity 941 B. Vagueness 943 1. Distinguishing Vagueness from Ambiguity 945 2. Resolving Vagueness 946 C. Vagueness in the Constitution 947 D. Gaps 951 E. Contradictions 954 F. Ignorance of the Language of the Law 956 G. A Small Construction Zone 958 IV. THE FRUITS OF MODERN ORIGINALIST SCHOLARSHIP: FINDING DETERMINATE MEANINGS 959 A. Structure 960 B. Rights 965 V. A SMALLER CONSTRUCTION ZONE HAS SUBSTANTIAL ADVANTAGES 967 A. Reducing the Importance of Deciding How to Fill the Construction Zone 968 B. Reducing the Construction Zone Creates More Desirable Constitutional Law 970 CONCLUSION 971 INTRODUCTION

A central debate about the Constitution focuses on how determinate is the meaning of the document. Of course, some provisions have an obvious meaning. Everyone agrees that the requirement that the President be thirty-five years old is clear. But many argue that essential terms, like due process, are indeterminate. (1)

This debate has not been settled by originalism-the view that interpreters of the Constitution should be constrained by the original meaning of the Constitution, which is fixed at the time of its enactment. To the contrary, in recent years the debate has been cast in terms of a key distinction in originalist theory-that between an interpretation zone and a construction zone. Under this distinction, interpretation is the process of determining the original meaning of a provision. When the original meaning is determinate, the content of a provision can be settled entirely by interpretation within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate-when the original meaning runs out-the content of the provision cannot fully be determined by interpretation. Instead, that content must be established in some other manner, such as by considering normative matters. This process of generating content occurs in the construction zone.

Thus, the question of how determinate is the Constitution can now be framed by the question of how large is the construction zone. This debate has significance not only for originalism but for the relation between originalism and what is often seen as its opposite-living constitutionalism. Critics of originalism have observed that if the construction zone is large, there may be little difference between originalism and living constitutionalism. (2) In a Constitution with a large construction zone, most of the important activity in constitutional law will be generated not by interpretation but by other considerations, such as normative views, that are likely to be chosen by those who give effect to the Constitution. By contrast, if the construction zone is small-if the original meaning seldom runs out and when it does run out, it involves only relatively minor matters-then the great bulk of issues will be resolvable by the original meaning without reference to extraconstitutional considerations. Originalism will then provide a stable and empirically ascertainable fundamental law that differs significantly from that of living constitutionalism.

In this Article, we offer the first sustained argument that the construction zone is a small one. While many constitutional provisions seem to be indeterminate, we argue that once the Constitution is properly understood as a legal document, these provisions become more determinate. Thus, the key to understanding the relative determinacy of the Constitution is recognizing that it is written in the language of the law. We show how the various indeterminacies that are thought to exist in the Constitution-ambiguity, vagueness, contradictions, and gaps-can often be resolved by considering the legal character of the Constitution.

An example of how the Constitution's legal character can render it more determinate is the term "due process." In ordinary language, due process is often understood to mean the use of fair procedures. Such a definition is vague and thus indeterminate. By contrast, as scholars have shown, (3) due process had a legal meaning at the time of the Constitution's enactment that mandated the government to follow the specific procedures required by the common law. This legal meaning yields determinate results far more often than the ordinary language meaning.

Once the mistaken assumption of the ordinary language nature of the Constitution is cast aside and appropriate legal techniques are employed, the Constitution becomes far more determinate than critics (and indeed many proponents) of originalism believe.

The smallness of the construction zone is largely the result of understanding the Constitution as a legal document. First, the Constitution must be understood as a document that is written in the language of the law and is filled with terms that have legal meanings, as the Supreme Court itself has recognized in construing the term "confrontation" in the Confrontation Clause. (4) Such legal meanings are often defined by past law, such as the common law. The terms, which developed to provide the precision that a legal system requires, are much less likely to be indeterminate than terms in ordinary language. The legal meaning of the Constitution is also discerned by applying the legal interpretive rules, such as the rule that ambiguities can be resolved by the purpose or structure of a provision. (5) These rules were an essential part of the Constitution's legal context and help fix a determinate meaning. Understanding the Constitution as written in the language of the law provides a more accurate rendering of the Constitution's original meaning-one that also greatly reduces the indeterminacies of the Constitution. When interpreting the Constitution, we must never forget that it is a legal document we are expounding.

One important reason why the legal terms in the Constitution are often mistakenly thought to be uncertain is the result of ignorance of historical legal meanings. While those learned in the law at the time of the Constitution's ratification would have understood the Constitution's legal meaning, modern interpreters will often be ignorant of these legal meanings and mistake the language as failing to address questions that it actually answers. Researching these issues can reduce this ignorance, supplying the knowledge needed to accurately interpret the Constitution. (6)

What might seem like indeterminacies in the Constitution can also be addressed by resolving uncertainties through appropriate techniques. Ambiguous terms can be addressed as a matter of interpretation, not construction, by using context to determine which meaning of an ambiguous term was employed. We recognize that close cases may exist. But at the time of the Constitution's enactment a legal interpretive rule-what we call the 51-49 rule-required interpreters to choose the better supported interpretation. Thus, even in close cases, ambiguities can be resolved by weighing the evidence.

Contradictions and gaps can be resolved in much the same way as ambiguity. Contradictory provisions can create indeterminate meaning because it is not clear which of the two contradictory provisions should take priority. But contradictions can usually be resolved with the aid of legal interpretive rules, such as the rule requiring interpreters to attempt to reconcile the two provisions. (7) Because the legal interpretive rules help to constitute the meaning of language in legal documents, the resolution of the contradiction using those rules selects one of the legal meanings of the communication in much the same way that those rules resolve ambiguity.

Gaps occur when silence in the Constitution about a matter is believed to create indeterminate meaning. But apparent gaps often turn out to be resolvable because other provisions in the Constitution address an issue. (8) Resolving which of these clauses apply is similar to resolving an ambiguity.

The hardest questions for reaching determinate resolutions of meaning involve vague terms, but even apparently vague terms often turn out to have determinate meanings. Some vague terms may be indeterminate, such as the term "tall," which does not indicate a clear cutoff between "tall" and "not tall." But in a legal document many apparently vague terms turn out to have a determinate meaning. First, some terms that are vague in ordinary language, like the term "jury," turn out to have a determinate meaning when understood in legal language.

Second, other terms that are labelled vague are more correctly classified as a type of ambiguity. Some commentators limit ambiguity to terms with unrelated meanings, like the word "bank," which can mean a financial institution or the side of a river. But ambiguity can also include terms that have related meanings, such as the term "property," which sometimes means real property and sometimes means both real and personal property. So long as the term has two meanings that people actually use, it is ambiguous, not vague. And when seemingly vague terms are correctly understood as ambiguous, their meaning can be resolved by the requirement to choose the better supported interpretation. Finally, some terms may be vague when applied to certain cases, but those cases may not often arise in the legal context and, if they do, may create relatively unimportant borderline cases. (10) They thus do not contribute much indeterminacy to the Constitution. Overall, then, the language of the law provides resources to reduce the construction zone to a small size.

We deploy these resources to consider issues, in each of...