Article
Construction, Originalist Interpretation and the Complete Constitution
University of Pennsylvania Journal of Constitutional Law Online
(2017)
Abstract
In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation seeking to identify the meaning of the text that was actually intended by the people whose assent made it law, leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete
Keywords
- Constitutional Law,
- Constitutional Interpretation,
- Courts,
- Interpretation,
- Legal Theory
Disciplines
Publication Date
2017
Citation Information
Richard Kay. "Construction, Originalist Interpretation and the Complete Constitution" University of Pennsylvania Journal of Constitutional Law Online Vol. 19 Iss. 1 (2017) Available at: http://works.bepress.com/richard_kay/14/