Legal Theory Lexicon 063: Interpretation and Construction

Introduction Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex. What does the text mean? How does that meaning translate into legal doctrine? And how does the doctrine apply in the context of the facts of the case? One way to think more clearly about this process is to distinguish betweeninterpretation and construction. We can roughly define these two activities as follows:

Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text. Construction: The activity of determining the legal effect (or legal content) of a legal text.

Those definitions sound pretty technical, but I hope you are starting to get the idea. We interpret the meaning of a text, and then weconstruct legal rules to help us apply the text to concrete fact situations. Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law. In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978). This introduction to the interpretation-construction distinction is aimed at law students (especially first year law students) with an interest in legal theory. Some Background Concepts Before we get back to interpretation and construction, it may be helpful to clarify some of the background concepts and ideas. We can begin with the idea of meaning itself. Meaning What does the word "meaning" mean? This question (which may sound pedantic) is actually incredibly important, and a good deal of confusion can be avoided if we are careful about the way we use this slippery word. Consider the following senses of the word meaning: Linguistic meaning The primary sense of "meaning" is used in expressions like, "What does that word mean?" or "What did he mean by that?" In this sense, when we ask what a constitutional or statutory provisions means, we are asking for its semantic content. Teleological meaning But sometimes we use the word meaning in another sense. When we ask for the meaning of a statute, we can be asking why the

statute was enacted? When someone says, "by passing that statute, Congress meant to benefit the construction industry," they are not referring to the semantic content of the statute, they are refering to the purpose or teleological meaning of the statue. Applicative meaning Lawyers sometimes use meaning in a third sense, to refer to the implications that a legal text has for a particular case. "What does the Second Amendment mean for my client?"--this question is not about the semantic content or the purpose of the statute, it is about the way the statute will apply. Back to the interpretation-construction distinction for just a moment. Interpretation is about meaning in thelinguistic sense. Vagueness and Ambiguity The interpretation-construction distinction is closely connected to another distinction--between vagueness and ambiguity. There is a entry in the Legal Theory Lexicon on vagueness and ambiguity so I will be very brief here. A word, phrase, sentence, or clause is ambiguous if it has more than one sense: for example, the word "cool" is ambiguous because it can mean (a) hip, (b) of low temperature, or (c) of even temperament. A word or phrase is vague when it has borderline cases: for example, the word "tall" is vague, because there is no bright line between those individuals who are tall and those who are not. The same word can be both ambiguous and vague in one of its senses: cool is ambiguous and each sense of cool is vague. Sometimes legal texts are vague. Sometimes they are ambiguous. Sometimes they are both vague and ambiguous. And sometimes they are neither vague nor ambiguous. For example, the provision of the United States Constitution that gives each state two senators is neither vague nor ambiguous: in context, neither "two" nor "Senator" is ambiguous. And Senators come only in whole numbers, so "two" is not vague. But many provisions of the constitution are vague: What constitutes an "infringement" of "freedom of speech"? Characteristically, interpretation resolves ambiguity and construction creates subsidiary rules that resolve vagueness. Why? Interpretation resolves ambiguity, because it is usually the case that there is a linguistic fact of the matter about the semantic meaning of a text that is ambiguous. For example, the phrase "domestic violence" is used in Article I of the United States Constitution: does it mean "spouse abuse" or "riot, rebellion, or insurrection"? In context, it is clear that the linguistic meaning of "domestic violence" was the latter and not the former. Construction resolves vagueness, because interpretation cannot do that work. When a word or phrase has a linguistic meaning that isvague, then

interpretation has done all the work it is capable of doing. At that point, what we need is a construction that allows us to draw a line (making the vague provision more specific) or that gives us a decision procedure (allowing case-by-case resolution of the vagueness). One point of clarification is important. Although ambiguity is typically resolved by interpretation and vagueness by construction, both interpretation and construction are always involved in the process. We determine linguistic meaning when we conclude that it is vague. Once an ambiguous text has been clarified by interpretation, we still need to engage in construction (giving the text legal effect) in order to apply the text to a particular case. Interpretation and construction are two moments (or stages) in legal practice. What Work Does the Interpretation-Construction Distinction Do? Is this interpretation-construction distinction really necessary? What work does it do? Does the distinction reflect a real and fundamental difference between different modes of legal practice? One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction. What if we called everything "interpretation" and didn't recognize construction as a distinct activity? Well, we could reinvent the distinction within the concept of interpretation. You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction. But if we did that, we would simply be using different labels to refer to the same concepts. So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts. Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment). For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement." If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on. (There is a Legal Theory Lexicon entry on transparency.) But sometimes courts run interpretation and construction together without any awareness of the what they are doing. That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content. When courts (or legal

theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent. On the one hand, they may try to squeeze constructions out of linguistic facts. On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations. (Making the egregious error of arguing for the existence of a fact from its desirability.) When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error). So is the interpretation-construction distinction real and significant? Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without. The linguistic meaning of a legal text and the content of legal rules are really two different things. The Interpretation-Construction Distinction and the New Originalism One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism." One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction. (This is especially clear in the work of Keith Whittington and Randy Barnett.) The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation. Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work. New Originalists deny that this is true. They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results. We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin. This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning. Some originalists who resist

compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction. This is just one example of the interpretation-construction in action. It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction. Conclusion Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality. The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases. The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion. With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.