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What Is the Difference Between Interpretation and Construction?

What is the “New Originalism” and does it differ from earlier Originalist theories? Professor Randy Barnett explains that New Originalism still relies on original public meaning interpretation but then proceeds one step further. Constitutional construction takes the original meaning and then applies it to current legal inquiries and circumstances. https://youtube.com/watch?v=NHfy6yrUd80


Interpretation is the activity of identifying the communicative content of the meaning of the text. What information is actually contained and communicated by the words on this page. What information is actually contained and communicated by the words in this little book. The new originalism really is just original public meaning originalism. With the following additional insight. And that is the original public meaning of the text only takes you so far. Sometimes more is required to apply the text to particular cases and controversies. When the text, for example, is more general or abstract. And that additional step itself is not itself interpretation. That additional step is what is called constitutional construction. Construction is the activity of putting these words into legal effect. Giving them a legal effect. Applying them to cases and controversies when that activity is going to require more than simply reading the words off the page. It's an additional step besides interpretation. And that's the new originalism. When engaged in constitutional application, one needs to be faithful to the original meaning of the text. And what does that mean? Faithfulness requires that one adhere to the original function, purpose, object and/or goal of the provision of the text that we're talking about. So constitutional construction should be as constrained by original purpose or original ends or original goals as constitutional interpretation is constrained by original meaning. Both together amount to a unified approach to originalism that unifies interpretation with construction and says, "They're both originalist." Constitutional construction involved applying that letter of the Constitution consistently with its spirit. And when you can find the original letter with the original spirit, that is a unified approach to originalism.

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