Schauer on the Interpretation-Construction Distinction

Frederick Schauer (University of Virginia School of Law) has posted A Critical Examination of the Distinction between Interpretation and Construction on SSRN.  Here is the abstract: The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative text in a statute, in the Constitution, or in any other authoritative legal item. But at the heart of the distinction is the idea that identifying the linguistic meaning of a legal text does not answer the question of how that text should be applied to specific facts and specific legal controversies. This is construction, so it is said, and it necessarily goes beyond the process of interpretation. Although the…

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