When constitutional scholars and judges speak of "interpreting" the Constitution, they routinely conflate two fundamentally distinct intellectual activities. The first—interpretation in the strict sense—asks what the constitutional text communicates as a matter of linguistic meaning. The second—construction—asks what legal effect that text should have when applied to concrete disputes. The failure to distinguish these inquiries is not a minor terminological quibble. It is a conceptual collapse that obscures the deepest structural questions in constitutional law.

The interpretation-construction distinction, elaborated most rigorously by theorists such as Keith Whittington and Lawrence Solum, exposes a persistent gap at the foundation of constitutional reasoning. Constitutional provisions possess determinate semantic content recoverable through conventional tools of linguistic analysis. But that semantic content frequently—indeed, systematically—fails to determine the legal rules courts must apply to particular cases. Something beyond interpretation must bridge that gap. That something is construction, and its scope is far broader than most constitutional actors acknowledge.

This distinction matters because it demands honesty about what constitutional adjudication actually involves. Judges who claim merely to be "reading the text" when they articulate elaborate doctrinal frameworks are either confused about their enterprise or concealing its constructive dimension. Once we grasp where interpretation ends and construction begins, every major debate in constitutional theory—originalism, living constitutionalism, common law constitutionalism—reveals itself as an argument not primarily about what the Constitution means, but about what principles should govern when textual meaning runs out.

Consider the Eighth Amendment's prohibition on "cruel and unusual punishments." As a matter of linguistic semantics, this phrase communicates a recognizable concept: punishments that are both cruel and unusual are constitutionally forbidden. Most competent English speakers can grasp this communicative content. But extracting a workable legal rule from it—one that determines whether life without parole for juvenile offenders, or decades of solitary confinement, violates the prohibition—requires far more than linguistic comprehension.

The distinction between semantic meaning and legal meaning maps onto a fundamental difference in the kind of question being asked. Semantic meaning is a function of linguistic conventions—the conventional meanings of words, their syntactic arrangement, and the contextual factors that shape communicative content. Legal meaning, by contrast, is the set of doctrinal rules, standards, and principles that courts derive from constitutional provisions and apply to resolve disputes. These are not the same inquiry, even when they appear to merge seamlessly in judicial practice.

Originalists have long understood part of this distinction. The original public meaning of a constitutional provision—what a reasonable speaker of English would have understood the text to communicate at ratification—is a claim about semantic content. But even the most committed originalist must acknowledge that recovering original public meaning does not automatically generate legal rules of decision. The Fourteenth Amendment's guarantee of "equal protection of the laws" communicates a recognizable principle. Translating that principle into doctrine governing affirmative action, disparate impact, or sex-based classifications demands something beyond semantic recovery.

Living constitutionalists, for their part, often proceed as though legal meaning simply is the best contemporary understanding of constitutional values. But this move too elides the gap. It assumes that evolving moral understanding directly generates legal rules—a claim that itself requires justification through some theory of construction, not merely interpretation. Both camps, in their distinct ways, tend to obscure the precise moment where linguistic analysis yields to doctrinal architecture.

What makes this distinction theoretically potent is its neutrality across interpretive methodologies. It does not presuppose originalism or living constitutionalism. Rather, it clarifies the structure of constitutional reasoning that any methodology must confront. Every theory of constitutional adjudication, upon examination, contains both an interpretive component—how to recover textual meaning—and a constructive component—how to move from meaning to legal doctrine. Failing to distinguish these generates confusion that pervades constitutional argument from Supreme Court opinions to the deepest reaches of scholarly debate.

Takeaway

Knowing what a constitutional provision says and knowing what legal rule it yields are two different things. Any constitutional theory that conflates these questions is building doctrine on unexamined foundations.

Constitutional text does not merely occasionally fail to determine legal outcomes. It fails systematically. This is not an accident of poor draftsmanship but an inherent structural feature of constitutions that aspire to govern across centuries and unforeseen circumstances. The framers of the American Constitution—and the drafters of every durable constitutional document—employed language whose semantic content was necessarily abstract, precisely because concrete specificity would have rendered the text obsolete within a generation.

The sources of underdeterminacy are multiple and compounding. Vagueness produces borderline cases where a term's semantic meaning neither clearly includes nor clearly excludes a particular application. Ambiguity generates competing plausible readings of the same provision. Gaps arise where the text simply does not address questions that later become constitutionally salient. And even where the text is relatively clear, its implications for genuinely novel circumstances may be indeterminate. Each of these phenomena pushes legal questions beyond the reach of interpretation and into what Solum terms the construction zone.

The construction zone is not marginal territory at constitutional law's periphery. It is the space where the most consequential and contested constitutional questions reside. Does the Due Process Clause protect unenumerated fundamental rights? Does the Commerce Clause authorize federal regulation of economic inactivity? Does the Second Amendment guarantee an individual right disconnected from militia service? In every one of these disputes, the semantic meaning of the relevant text underdetermines the legal answer. Interpretation, however rigorous, cannot resolve them alone.

This recognition carries profound implications for constitutional discourse. When judges and advocates frame their positions as the inevitable product of textual reading—as though the text simply compels their conclusions—they engage in what we might call construction denial. This is the pretense that construction is unnecessary because interpretation alone generates determinate answers. Construction denial is not merely intellectually dishonest. It is structurally corrosive, because it immunizes constructive choices from the scrutiny and justification those choices inherently demand.

Acknowledging underdeterminacy's scope does not entail constitutional nihilism. The text constrains even where it does not determine. Interpretation establishes the boundaries within which construction operates, identifying the range of permissible constructions by excluding those that contradict clear semantic meaning. But within those boundaries, generating constitutional doctrine is constructive work—governed by principles that must be articulated, defended, and justified on grounds entirely distinct from textual meaning itself.

Takeaway

The most important constitutional questions live precisely where textual meaning runs out. Pretending interpretation alone can resolve them doesn't eliminate the need for construction—it simply hides the choices being made.

If constitutional construction is both inevitable and extensive, then the central question becomes: what principles legitimately guide it? This is not a question interpretation can answer, because the need for construction arises precisely where interpretive resources are exhausted. Construction's legitimacy must be grounded in considerations that extend beyond textual meaning—a conclusion that some constitutional theorists find liberating and others find deeply threatening to the rule of law itself.

Several candidates compete for authority in the construction zone. Structural inference derives legal rules from the overall architecture of the constitutional system—separation of powers, federalism, popular sovereignty—rather than from any single textual provision. Precedent treats the accumulated history of prior constructions as authoritative, reasoning that doctrine builds upon itself and that stability carries independent value. Consequentialist reasoning evaluates competing constructions by their practical effects on governance, rights protection, and institutional functioning. And political morality—the substantive principles of justice the constitutional order is understood to embody—provides yet another source of constructive guidance.

Each source carries distinctive strengths and vulnerabilities. Structural inference maintains fidelity to constitutional design but risks producing results untethered from specific textual commitments. Precedent offers stability and predictability but can entrench constructions that were poorly reasoned or morally objectionable from inception. Consequentialist reasoning responds to evolving circumstances but threatens to reduce constitutional law to policy analysis. And political morality, while potentially the most principled guide, raises the specter of judicial imposition of contested philosophical commitments under constitutional cover.

The relationship among these constructive resources is itself contested terrain. Rawlsian approaches to constitutional essentials suggest that construction should be guided by principles of justice that all reasonable citizens could accept—a standard that privileges political morality but constrains it through the discipline of public reason. Common law constitutionalists, by contrast, emphasize precedent and incremental doctrinal development as the primary constructive mechanism, treating political morality as a background influence rather than a direct source of judicial authority.

What unites these competing approaches is a shared recognition that construction requires justification. The principles guiding construction cannot simply be asserted—they must be defended against alternatives through transparent normative argument. This is precisely why the interpretation-construction distinction matters so urgently. Without it, constructive choices masquerade as interpretive discoveries, and the normative arguments that should discipline construction never receive the scrutiny they require. Constitutional theory's most pressing task is not choosing between interpretation and construction, but developing adequate standards for the constructive enterprise that constitutional law inescapably embodies.

Takeaway

Construction is not interpretation's failure mode—it is constitutional law's essential complement. The legitimacy of constitutional doctrine depends not on concealing constructive choices but on openly justifying the principles that guide them.

The interpretation-construction distinction does not resolve constitutional controversies. It does something more fundamental: it clarifies what those controversies are actually about. Debates that appear to concern textual meaning frequently turn, upon analysis, on competing visions of legitimate construction. Recognizing this transforms constitutional discourse from a contest over who reads the text correctly into a more honest confrontation over what principles should govern where the text does not decide.

This reframing carries practical consequences. It demands that judges articulate their constructive premises rather than concealing them behind interpretive rhetoric. It requires scholars to defend preferred sources of constructive authority against genuine alternatives. And it invites citizens to engage constitutional debate at the level where it actually operates—not the surface of textual meaning, but the deeper stratum of constitutional values and institutional design.

Constitutional law, at its core, is an ongoing exercise in construction disciplined by interpretation. The sooner legal culture acknowledges this structure with clarity, the more honestly a constitutional democracy can govern itself through law.