Mark Graber has a very nice Balkinization post on the AALS Constitutional Law Section's program on this past Saturday, but I want to comment on his central thesis:
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A large number of any interpretation/construction distinctions exist. Commentators easily slip from one to another.
Mark goes on to list a variety of possible distinctions, between interpretation and construction that he believes were involved in the discussion on Saturday. My take on the discussion was quite different. Rod Hills, Mitch Berman, John McGuiness, Ian Batrum, and Laura Cisneros, so far as I could tell, actually seemed to agree on the content of the distinction. Here is how I put it in my remarks:
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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.
The interpretation-construction distinction is both a technical idea in contemporary constitutional theory (especially in the work of Keith Whittington, Randy Barnett, and myself) and a technical distinction in the common-law. Because it is a technical distinction, the stipulated or technical sense of the words "interpretation" and "construction" does not necessarily correspond with their ordinary meanings in English–and a different vocabulary could be used to express the idea that recovering linguistic meaning ("interpretation") is a different activity than is the specification of legal doctrine ("construction"). For example, someone might use the terms "linguistic interpretation" and "doctrinal interpretation" to mark the same distinction.
Mark suggests that the interpretation-construction distinction is also used to express a distinction with respect to certainty. He gives three versions of this idea, but they are all similar to the first:
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Version 1: Interpretation takes place when the meaning of the constitution is clear (by any broadly accepted theory of constitutional interpretation). Construction takes place when the meaning of the constitution is contested.
This is not the interpretation-construction distinction that has been a part of the common law since (at least) the early Nineteenth Century; nor is this the distinction that has been used in contemporary constitutional theory. Nonetheless, one can see how someone might come believe something like this. When the linguistic meaning of the Constitution is neither vague nor ambiguous (Graber uses "clear"), it will frequently be the case that the semantic content of the text seems to do all the necessary work. For example, the linguistic meaning of the constitutional provision that allocates two Senators to each state is neither vague nor ambiguous, so it might seem like "interpretation" is doing all the work. But as I understand the distinction, this is not the case. Even if the linguistic meaning of the text is clear, that linguistic meaning must still be translated into a legal rule–even if the legal content of constitutional doctrine is identical to the linguistic content of the constitutional text. And if the text is ambiguous, then interpretation that takes context into account will do the work of determining which of two or more possible senses of a word or phrase provides the actual meaning. In other words, construction is required even when the linguistic meaning is clear, and interpretation is sometimes required in order to "clear up" an ambiguity.
Graber also suggests that the interpretation-construction distinction is about the difference between originalist and nonoriginalist methods:
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Version 4: Interpretation takes place when we look for the original meaning of the constitution. All other forms of constitutional analysis engage in construction
Once again, I don't think that any of the contemporary theorists who use the distinction in their work have said anything like this. And this is most certainly not the way the distinction has been used in the common-law for the last two centuries. But once again, one can see how this confusion might arise. Originalists emphasize the idea that the linguistic meaning of the Constitution is fixed (I call this the fixation thesis) and most originalists believe that the original meaning of the Constitution should constrain constitutional construction. Some nonoriginalists believe that the linguistic meaning of the constitutional text should not constrain constitutional doctrine, and many nonoriginalists believe that the linguistic meaning of the text is only one of several factors (or "modalities") in the practice of constitutional argument. But the interpretation-construction distinction is actually neutral as between originalists and nonoriginalists. Interpretation aims at the recovery of linguistic meaning, but originalists must establish that the linguistic meaning is the original meaning by arguments and not by stipulation. Nonoriginalists are free to argue that the linguistic meaning of the text is not the original meaning or that the linguistic meaning can and should be overriden by other factors (changing circumstances and values). The interpretation-construction distinction can and should be embraced by originalists and nonoriginalists. The purpose of the distinction is to add clarity and precision to the vocabulary of legal theory in general and constitutional theory in particular.
Graber also suggests that the interpretation-construction distinction is understood in relationship to institutions–and specifically the divide between courts and the political branches:
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Version 7: Courts as a matter of history have engaged in interpretation. Non-judicial officials as a matter of history have engaged in construction.
Once, again, I believe that this is a misunderstanding of the distinction as it has been articulated in both contemporary constitutional theory and in the common-law tradition. It is true that Keith Whittington's very important work on the interpretation-construction distinction does suggest that the primary locus of interpretation is the courts and that construction takes place in the political branches. I believe that Whittington was on to something very important, but I think that his early formulations of this claim were not quite correct. Whittington is right: in a wide variety of circumstances, general, abstract, and vague constitutional provisions may require construction by the political branches. But I believe that Whittington (in his early writings) did not fully appreciate the necessity for constitutional construction by the courts. When the constitutional text is vague in a way that is relevant to the resolution of a case presented to a court, then judicial construction (the development of constitutional doctrine) will be required. Of course, it is possible that the doctrine will involve deference to the political branches, but the decision to defer is itself a constitutional construction. The important point is that the interpretation-construction distinction is about the difference between the discovery of linguistic meaning ("interpretation") and the development of legal doctrine ("construction"). The role of courts and the political branches with respect to this distinction should not be mistaken for the content of the distinction.
Read Graber's fine post!
And here is a link to the Legal Theory Lexicon entry on the interpretation-construction distinction: