Document Type

Article

Publication Date

2019

Abstract

Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text’s meaning is ambiguous or does not address an issue. In fact, a rule of construction is always necessary to determine a legal speech act’s effect, including when its meaning is clear and definite. Construction does not supplement interpretation, but compliments it. Second, there exists more than one form of interpretation, and correspondingly more than one type of meaning. The meaning a text or other speech act has depends on the questions one asks of it. Third, which type of meaning is legally relevant depends on the applicable rule of construction. Rules of construction are in this sense conceptually prior to legal rules of interpretation. This priority has important consequences for how legal rules of interpretation are justified. Finally, because there exist multiple types of meaning, when one form of interpretation runs out, another form might step in. Whether that is so again depends on the applicable rule of construction.

These four claims apply to legal interpretation and construction generally. This Article supports them with a close examination of the interpretation and construction of contractual agreements. It then argues that this account of interpretation and construction illuminates the shared structure of Joseph Story’s and Thomas Cooley’s theories of constitutional interpretation, and by extension theories of constitutional interpretation generally.

Publication Citation

18 Geo. J.L. & Pub. Pol’y (forthcoming 2020).

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