The next big topic in Solum’s essay is the distinction between Constitutional Construction and Constitutional Interpretation. The distinction builds on the clause meaning thesis, and the fixation thesis, in the sense that construction and interpretation (as used by Solum) are necessary to get anything like a sensible reflection of constitutional practices, i.e., to get the project to a position where it could be seen as an effort to understand the Constitution. That is a long-winded way to this point: Given the clause meaning thesis, Solum must have some apparatus like construction/interpretation. (I should note that it is one of the moves that some acquaintences find most attractive about Solum’s Originalism – it is the route by which to get to a morally acceptable legal order.) Here is the distinction:
Constitutional Interpretation: The activity of constitutional interpretation has as its object the recognition of the semantic content of the constitutional text.
Constitutional Construction: The activity of constitutional construction has as its object the supplementation of the semantic context of the constitutional text based on the context of constitutional utterance.
So interpretation is limited to discovering the semantic content of the text (not the utterance? Does the shift in terms mean anything here? I suspect not, but worth considering), while construction is supplying additional content. Construction fills gaps, resolves vagueness and ambiguity, contradiction, etc. To get to outcome – applications – the interpretation will be inadequate and what is added is the construction. As taxonomy, this seems fine; certainly not misleading. But it does more than offer a descriptive taxonomy. We can see this by looking at the overall progress of exposition. We start with the account of meaning, i.e., clause meaning. The Constitution just means the public meanings of the provisions of the Constitution. That meaning is fixed at the time of adoption (or framing and ratification). Interpretation of the Constitution is getting settled on the first two steps – working out what the fixed meaning is. Stopping there leaves intact numerous practically significant problems. That Constitution (the Constitution of the first two steps) is a moral disaster and leaves us with gigantic practical problems. It cannot be enough for either the existing legal system or any most of us would be willing to accord legitimacy. The additional limits and requirements, processes, etc., has to from somewhere, and that somewhere is Constitutional Construction.
There is a gap here. Solum believes that gap is filled by the observation about practicalities. If the Constitution is vague on some issue, the issue will still have to be decided and that decision should be both guided and guiding (of later decisions). Eminently reasonable way of thinking. While reasonable, it is not exactly compelled. One could just stop with interpretation, and, in effect, say that where interpretation does not resolve the issue it is not resolvable as a matter of the Constitution – do what you like, there is no law on the issue. It is an unattractive option, but it is an option. More importantly, one needs a fuller explication of how construction comes to have status as Constitutional law. One needs more because (1) the idea of construction does not fit easily with the fixation thesis, (2) it is necessary to understanding the contribution thesis (to come) if it has more than the barest content, and (3) it is necessary to understanding interpretation. There is not a contradiction between construction and the fixation thesis, but they also are not natural companions. It will be helpful to a final evaluation of the fixation thesis to have good grasp of how it stands in relation to substantive commitments which are fundamental. It is necessary to get somehow from Solum’s Constitution of clause meaning and original public meaning to the neighborhood of federally enforced civil rights. It is necessary to sorting out the role “context” ends up playing in the theory. Solum suggests that interpretation of the public meaning in context resolves many or most ambiguities in the Constitution. How is that supposed to work? The consideration of context seems like importation of additional material to the semantic content. Which aspects of the context are attended to and made use of is surely subject to normative analysis, there are surely criteria of some kind at work there. Is it that there is a difference in kind, so the interpretation (with context) is somehow unlike construction? That seems to me almost unbelievable. It is very likely that there are only differences in degree under Solum’s theory. To be honest, I suspect the only salient difference will turn out to be time, but that is just a suspicion.
A bit later, Solum says: “The currency of legal theory is truth.” I wonder what the meaning of ‘truth’ is here. . . .
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