Over at the Legal Theory Blog, Larry Solum has a Legal Theory Lexicon post on The Interpretation-Construction Distinction. The post is an excellent one and Larry has certainly done much to develop this distinction.
Larry does not mention, however, that there have been significant criticisms made of the distinction. In this article, which I wrote with John McGinnis, we criticize the distinction on theoretical, historical, and policy grounds:
This article defends an interpretive approach that we call “original methods originalism.” Under this approach, the Constitution should be interpreted using the interpretive methods that the constitutional enactors would have deemed applicable to it. Thus, many of the key questions that arise about constitutional interpretation – such as whether intent or text should be its focus and whether words should be understood statically or dynamically – are answered based on the content of the interpretive rules in place at the time of enactment.
Original methods originalism provides the best way of determining the actual original meaning of the Constitution. The two leading approaches to determining the original meaning are original intent and original public meaning. We show, however, that the correct application of both of these approaches requires that they follow the original interpretive rules. Thus, both original intent and original public meaning lead to original methods originalism. While the original methods approach requires that the Constitution be interpreted in accordance with the original interpretative rules, the rules at the time could conceivably have required that the Constitution be interpreted as a living document. But we provide strong evidence that these interpretive rules were essentially originalist as that term is conventionally understood.
As well as focusing on the positive aspects of the original methods approach – its semantic account of the Constitution’s meaning – we also show that original methods originalism is normatively attractive. Enacting a constitution through a strict supermajoritarian process, like the one that was used in the United States, is likely to produce a beneficial constitution. But for the constitution to have this desirable quality, it must be given the meaning on which its enactors voted. That meaning requires reference to the interpretive rules existing at the time.
The original methods approach contrasts with current theories of constitutional construction. The “constructionist originalist” believes that original meaning controls the interpretation of provisions that are not ambiguous or vague, but that constitutional construction provides judges and other political actors with discretion to resolve ambiguities and vague terms based on extraconstitutional considerations. We find no support for constitutional construction, as opposed to constitutional interpretation, at the time of the Framing. The enactors would have expected such matters to be interpreted based on the original interpretive rules, but constitutional constructionists substitute extraconstitutional resolutions for those passed through the supermajoritarian process. Constitutional construction also exacerbates agency costs, because it allows interpreters to employ discretion rather than requiring them to follow the guidance furnished by the original constitution-making process.
A modified version of this article will appear in our book forthcoming in 2013 from Harvard University Press.