Arguing about the Constitution: The Topics in Constitutional Interpretation

Abstract

Constitutional construction is the part of constitutional interpretation in which interpreters implement and give effect to the Constitution-for example, by creating doctrines, practices, and institutions. The idea of constitutional construction is central to the New Originalism, which divides constitutional interpretation into two tasks. Interpretation (in the narrower sense) ascertains the text's original meaning; construction implements the text, giving it effect in practice.' What most people call constitutional interpretation includes both interpretation, in the narrower sense of ascertaining the meaning of the text, and constitutional construction, which creates and applies doctrines and practices that implement the Constitution.

The distinction between interpretation and construction highlights an important problem in constitutional theory. What authorizes constructions of the Constitution that may be consistent with the text but are not required by the text? For example, the Supreme Court's decision in New York Times Co. v. Sullivan created a constitutional privilege that requires public officials suing for defamation to prove "actual malice." Sullivan purports to follow from the text of the First Amendment. But this construction of the First Amendment is by no means the only possible rule that is consistent with the text. So what makes the rule of New York Times Co. v. Sullivan a good-much less the best-construction of the Constitution?

Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project. The second is a set of rhetorical techniques for analyzing problems and devising legal arguments, techniques that originated in the common law.