Abstract

BERMAN, Mitchell N.. Constitutional Constructions and Constitutional Decision Rules: Thoughts on the Carving of Constitutional Implementation Space. Isonomía [online]. 2013, n.38, pp.105-142. ISSN 1405-0218.

American constitutional theorists dubbed "the new originalists" have in recent years advanced a view of constitutional adjudication, and of extra-judicial constitutional implementation, that centrally features a conceptual distinction between "constitutional interpretation" and "constitutional construction." Constitutional interpretation is said to be the process of determining the linguistic meaning of the Constitution's text, whereas constitutional construction is the process of translating the linguistic meaning into legal rules or tests, paradigmatically, but not exclusively, to render a vague meaning more determinate. This paper, written as a contribution to a symposium on the interpretation/construction distinction in constitutional theory, critically assesses the cogency and utility of this way of carving the space of constitutional implementation. It argues: that supplementing originalist constitutional interpretation with the notion of constitutional construction does not save originalism from the many challenges it faces; that the distinction between the determination of a legal text's linguistic meaning (or "semantic meaning" or "communicative content") and the construction of legal rules or tests is not especially useful; and that the more perspicuous distinction in the neighborhood lies between determining a text's legal meaning or content, and crafting doctrine to implement or administer that legal meaning. That is the distinction that undergirds the distinction that I and other scholars have previously offered between "constitutional operative propositions" and "constitutional decision rules."

Keywords : Constitutional interpretation; constitutional construction; constitutional decision rules; originalism; non-originalism.

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