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CONSTRUCTING A NEW AMERICANCONSTITUTION

Keith E. Whittington*

Problems of constitutional interpretation have occupied aprominent part of the scholarly agenda for quite some time, andrightly so. Theories of constitutional interpretation help guideand legitimate the work of the judiciary. They grapple directlywith what the courts say they do and with many of the issues thatlawyers routinely face. Understanding what should beinterpreted, how it should be interpreted, and who has theauthority to interpret are all important and basic to theconstitutional enterprise.

Interpretation is not all that we do with constitutions,however. Interpretive practice is supplemented through aprocess of constitutional construction. Constitutional scholarshiphas given increasing attention to the idea of construction as afeature of the constitutional enterprise that is distinct frominterpretation and that is worthy of analysis in its own right.

In this Article, I reintroduce the concept, clarify a couple offeatures of the idea of constitutional constructions as Iunderstand it, and suggest some possible benefits ofconstructions as a conceptual tool. The Article proceeds first bydiscussing what constitutional construction is and how it relatesto constitutional interpretation. Part II considers the extent towhich courts engage in constitutional constructions. Part IIIconsiders whether it is possible to avoid constitutionalconstructions. The Article concludes by suggesting ways in whichthe concept can be useful to various scholarly literatures.

* William Nelson Cromwell Professor of Politics, Princeton University.

1. See Walter F. Murphy, Who Shall Interpret?: The Quest for an UltimateConstitutional Interpreter, 48 REV. POL. 401, 401 (1986).

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I. WHAT IS A CONSTITUTIONAL CONSTRUCTION?

Constitutional construction is one mechanism by whichconstitutional meaning is elaborated. It works alongsideconstitutional interpretation to elaborate the existingconstitutional order. The process of constitutional construction isconcerned with fleshing out constitutional principles, practicesand rules that are not visible on the face of the constitutionaltext and that are not readily implicit in the terms of theconstitution.

We can imagine a continuum of actions that political actorscan take under a Constitution, ranging from policymaking torevolution. At one end of the continuum, political actors cantake constitutional forms as a given and make policy decisionsunder it, filling government offices and exercising governmentpower in (constitutionally) noncontroversial ways. Policymakingseeks to exercise constitutional authority, and its implications forelaborating or altering constitutional meaning are only implicit.At the other end of the spectrum, political actors can engage inrevolution and replace the existing constitutional order ordocument wholesale in favor of a new one. The Articles ofConfederation can be displaced in favor of the U.S. Constitution.Less extreme than revolution is creation, which adds new text toa preexisting Constitution. Creation embraces a revisionaryauthority, but the revisions are partial rather than total. Theyamend and reform the Constitution, rather than throw it over.

Interpretation and construction are both concerned withelaborating, developing and effectuating the preexistingConstitution. Unlike the mere policymaker, the interpreter orconstructor engages the Constitution directly and attempts toaddress and resolve contested claims about constitutionalmeaning. But political actors engaged in these tasks do not claimthe authority to revise, amend or alter the Constitution. Theyclaim only the lesser authority of attempting to understand andrealize the Constitution as they found it.

Construction lies closer along the continuum to the processof creation, however. Construction picks up where interpretationleaves off. Interpretation attempts to divine the meaning of thetext . There will be occasions, however, when the Constitution as

I See also KEITH E. WHrrrINGTON, CONSTITUTIONAL CONSTRUCriON 3-5(1999).

3. For these purposes, I bracket the issue of how best to interpret a constitutionaltext. One can accept a fairly capacious understanding of the interpretive process and still


2010] CONSTRUCTING A NEW CONSTITUTION 121

written cannot in good faith be said to provide a determinateanswer to a given question. This is the realm of construction.The process of interpretation may be able to constrain theavailable readings of the text and limit the permissible set ofpolitical options, but the interpreter may not be able to say thatthe text demands a specific result. Further judgments, furtherchoices, about how to proceed within those bounds are madethrough the process of construction. Constitutional meaning isno longer discovered at that point. It is built.

But constitutional constructions are built within theboundaries, or to use Jack Balkin's phrase, within theframework, of the interpreted Constitution. They partake of theprocess of constitutional creation in the sense that constructionsare necessarily creative, but not in the sense that they have theauthority to revise the constitutional text or the discoverablemeaning of that text. The process of construction takes overwhen the traditional tools of interpretation exhaust themselves.In order to do so, those who construct constitutional meaningmust lean more heavily on external considerations to bringdeterminacy to what interpretative arguments leaveindeterminate. Put differently, constitutional constructions makenormative appeals about what the Constitution should be,melding what is known about the Constitution with what isdesired.

Constructions are, by their nature, temporary. Aninterpretation of a text attempts to capture the true meaning ofthe text. Any interpretation will be revisable in light of laterargument and evidence. Any interpretation is likely to be partial,since it will be motivated by a particular question andcontroversy, and thus may highlight some features ofconstitutional meaning while pushing others into thebackground. Interpretations aim to be accurate extensions of thefixed text. Interpretations should, therefore, be enduring exceptto the extent to which there is more to be said about them orthey can be made more accurate. By contrast, constructions are

make room for a supplementary and distinguishable process of construction. As long asan interpretive approach is capable of recognizing gaps and indeterminacies inconstitutional meaning, then it is capable of recognizing the value of constitutionalconstructions. As a result, I would resist tying the concept of constitutional constructionsto any specific controversial claim about what interpretation means or how best tointerpret. Cf. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 CONST.COMMENT. 95 (2010).

4. Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw.U. L. REv. 549 (2009).



meant to settle indeterminacies to the satisfaction of immediatepolitical interests. Constructions involve judgments and choicesabout how best to resolve those indeterminacies. Those choicescan be revisited without disturbing the constitutional text itselfor the discoverable meaning of the constitutional text. If aconstruction no longer serves the interests or expresses thevalues of important political actors, then it can and often will berevisited. A successful constitutional construction may spancenturies, or merely a political generation. We currently thinkwe know the answer to such basic questions as whether a statehas a right to secede from the union or whether the Senate's"advice and consent" function can be exercised entirely throughpost-negotiation treaty ratification or whether presidents canappropriately veto legislation on policy grounds, but thoseanswers depend on settlements that could, in the rightcircumstances, be undone. Those constitutional resolutions maybe venerable, but they reflect contingent choices made withinthe constitutional framework not essential requirements of theConstitution itself.

Let me give three illustrative examples of situations inwhich constructions might play a role in constitutional practice.This set of examples is not intended to be exhaustive, but toclarify what constructions are and how they fit within thecontinuum of actions that can be taken under a Constitution Inparticular, the examples highlight the relationship betweeninterpretation and construction. Constructions occur in thecontext of textual vagueness, constitutional gaps, andconstitutional inspirations.

First, constitutional vagueness occurs when there isuncertainty as to where exactly the boundaries of aconstitutional rule, standard or principle might be. Someconstitutional rules may have precise boundaries, leaving littleuncertainty or vagueness about what is covered by the rule andwhat is excluded. Others may have indeterminacies at theirboundaries. Interpretation may be able to help specify what rulea constitutional provision seeks to convey and identify the coremeaning of a term, but the meaning of a term as it might apply inmore marginal contexts may be underdetermined.

A number of constitutional provisions and principles arevague to some degree. They have a clear core of meaning, whichprovides ready answers for many questions about how the

5. See also WHFITINGTON, supra note 2, at 8-9.



provisions ought to be applied. Interpreters would be capable ofrecognizing government actions that are permissible and thosethat are impermissible. But some questions, including somequestions of immediate political importance, might fall inbetween, where it is unclear whether government action ispermissible or impermissible. We might, for example, agree withmany nineteenth-century commentators in thinking that theInterstate Commerce Clause had clear and determinate meaningabout some things. Commercial transactions across stateboundaries and the transportation of economic goods acrossstate boundaries were within the core meaning of interstatecommerce. They were "paradigm cases" of the rule embodied inthe commerce clause.' On the other hand, commentators widelyagreed that the federal regulation of manufacturing was outsidethe bounds of the Interstate Commerce Clause. Between thesetwo areas of relative interpretive clarity were areas of relativeindeterminacy. Did, for example, the Interstate CommerceClause by implication disempower the states from interferingwith interstate commerce? When did goods pass from the realmof interstate commerce to the realm of intrastate commerce?Once the limits of interpretation are reached, further textualanalysis or historical inquiry or structuralist argument mayprovide grist for the mill but they will not resolve theindeterminacy. Within that zone of construction, choices willhave to be made as to how best to realize the constitutionalproject going forward.

Second, constitutional gaps occur when the constitutionaltext provides no clear instruction for resolving importantconstitutional issues. Such "gaps" may be the product either ofgenuine oversight by constitutional drafters or of delegation tofuture political decision-makers. While interpretation isultimately about discovering the meaning implicit in the text thatis there, construction is concerned with addressing constitutionalsubject matter and resolving indeterminacies. If a givenConstitution fails to make adequate provision for a givenaction-or simply leaves some decisions to be made by politicalactors operating through conventional political means-construction fills the gap. Arguably, the removal power is aninstance of such a gap. The U.S. Constitution specifies howexecutive branch officials are to be appointed, but does not

6. JED RUBENFELD, REVOLUTION BY JUDICIARY 15 (2005). I do not mean toembrace all of Rubenfeld's approach to thinking about the structure of constitutionallaw, but his language is useful here.



specify how they are to be removed from office, except byimpeachment. The First Congress puzzled over severalalternatives as to how officers might be removed and how suchremovals might be constitutionally justified. The statutescreating the Cabinet departments settled on unilateralpresidential removal, but there was little agreement in Congressover the rationale behind that settlement.7 A removal power is arequisite part of the constitutional scheme. Although there areinterpretive arguments that can dissolve the apparentconstitutional gap in this particular case,8 the eventual statutorysettlement in favor of a unilateral presidential removal powercan be readily understood as a relatively successful constitutionalconstruction to resolve a textual indeterminacy in a workableand normatively attractive way. Somewhat differently, thedecisions to have individual citizens vote to select presidentialelectors or to elect members of the U.S. House ofRepresentatives by single-member geographic districts fill outthe effective meaning of the U.S. Constitution and thefunctioning scheme of government. In those cases, theConstitution leaves to state legislative discretion howpresidential electors will be chosen and how House memberswill be elected. In both cases, the "gap" has since been filled inwith substantive content, severely limiting legislative discretion.Our working Constitution is one in which citizens choose theirelectors (and the electors exercise no autonomy) and Housemembers represent single-member districts.

Third, constitutional inspirations occur when political actorstake constitutional requirements as their starting points and seekto supplement them. The constitutional text, alongside otherdocuments, can be a source of political inspiration. Its terms andprovisions can help support, legitimate, and mobilize demandsfor reform and action. Political inspiration is not the same thingas interpretation, however, and calls for action may outrun whata careful interpreter would say that the constitutional text cansupport or require. Construction can supplement whatinterpretation provides. Constitutional rights provisions are the

7. See Keith E. Whittington, The Separation of Powers at the Founding, inSEPARATION OF POWERS 11 (Katy J. Harriger ed., 2003).

8. Interpretive claims could be made, for example, that the Constitution positivelyprecludes anyone from removing executive officers through any mechanism other thanimpeachment or that presidential removal is implicit in the "executive power" of ArticleII. Likewise, it would be an interpretive claim to contend that Congress had freedom tolegislate on this subject via the Necessary And Proper Clause. The specific path thatCongress chose to take (unilateral presidential removal) was an act of construction.



easiest example Rights provisions give rise to a politicalrhetoric and mobilization aimed at defending and expanding thescope of those rights. Statutes, executive actions and judicialdecisions expanding civil rights and liberties build not only oninterpretations of what constitutional provisions require but alsoon ideas about what rights individuals ought to have incontemporary society. Assume arguendo that, properlyinterpreted, the First Amendment does not protect seditiouslibel, the Second Amendment does not protect individual gunownership, that the Eighth Amendment does not prohibitexecution by firing squad, or that the Thirteenth Amendmentdoes not apply to "wage slavery" and require rights of collectivebargaining. There is nothing that prevents citizens frommobilizing around those more expansive ideas of their rights andgovernment officials from acting to recognize and effectuatethose ideas. The knowing lawyer might well say that theThirteenth Amendment does not mean that labor organizing isentitled to constitutional protection, but the labor activist orlegislator might well argue that protections for labor arenecessary for realizing the requirements and promise of theThirteenth Amendment. °

II. COURTS AND CONSTRUCTIONS

Who should construct the Constitution? What role docourts play in constructing the Constitution? These are twodistinguishable questions about the relationship between courtsand constitutional construction. One raises normative issuesabout whether and under what circumstances courts shouldengage in constitutional construction. The other raises empiricalquestions about whether courts have in fact been active playersin offering and developing constructions that have shaped ourconstitutional understandings and practices. I have not spentmuch time, in those terms, pursuing the descriptive account ofhow courts have actively constructed constitutional meaningover time. It would not be a difficult task to show that the courts

9. This process can obviously produce more difficult dynamics as well from theperspective of interpretive constitutional fidelity. The debate over Section Five of theFourteenth Amendment points to exactly these issues.

10. On the latter, see James Gray Pope, Thirteenth Amendment versus theCommerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957,102 COLUM. L. REV. 1 (2002); REBECCA E. ZIETLOW, ENFORCING EQUALITY 63-94(2006).



have engaged in what I call the process of construction." Themore interesting immediate questions are the normative ones.

Some of those who have embraced the interpretation-construction distinction are also comfortable with the courtsactively engaging in construction. For Randy Barnett, one of thevirtues of the interpretation-construction distinction is that itallows us to recognize that when we reach the boundaries ofinterpretation the meaning of the text may still beunderdetermined and need to be supplemented. With Dworkin,Barnett would call on the courts to construct the Constitution sothat it is the "best it can be" so as to enhance its legitimacy andpromote liberty." Somewhat differently, Jack Balkin makes nodistinction between courts and other institutions that mightengage in the process of construction. Every governmentalinstitution-as well as a variety of nongovernmental actors-isequally engaged in the process of creating the "livingconstitution." Courts may not have the most important role toplay in Balkin's theory, but they are equally able to interpret orconstruct constitutional meaning."

I have been more skeptical about the use of construction bythe courts. I initially argued:

The judiciary should seek to enforce the correctinterpretation of the Constitution, but it should also avoidenforcing even venerable constructions. This caution does notrequire that the judiciary identify constructions per se, onlythat it keep its eye on interpreting the Constitution whilesimultaneously bearing in mind the possibility ofconstitutional indeterminacy. The judiciary should not propup old constructions that are no longer politicallyauthoritative, and it should avoid stifling the development ofnew constructions by placing the judicial imprimatur on theold and contributing to its hegemonic status. Constructionsclaim the fidelity of political actors through their continuing

11. My recent work has been concerned, in part, with examining why courts are soprominent in American constitutionalism given the importance of extrajudicial actors inconstitutional constructions. The importance of extrajudicial constitutional action to oursystem does not mean that there will not also be a lot judicially produced constitutionallaw. See KEITH E. WHITrINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY(2007).

12. Randy Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 646(1999) (quoting RONALD DWORKIN, LAW'S EMPIRE 62 (1986)); see also RANDYBARNETr, THE PRESUMPTION OF LIBERTY 118-27 (2004).

13. Balkin, supra note 4, at 559.



political authority, not through judicial enforcement. 14

My concern was with what Robert Cover characterized as the"jurispathic" quality of courts and the possibility that judiciarywould artificially limit the development of new constructions. 5

Moreover, the authority of the courts to constructconstitutional meaning would not necessarily stand on the samefooting as their authority to interpret the Constitution. One ofthe starting points for my earlier explorations of originalism andtheories of constitutional interpretation was a concern forjustifying the practice of judicial review. I, at least, am satisfiedthat courts can assert an authority to nullify the actions of othergovernment officials when judges act on behalf of constitutionalinterpretations. 6 Constructions Rresent a different problem.They are "essentially political." The arguments that justifyjudicial review on the basis of interpretation are not satisfactoryto demonstrate that the courts should also exercise judicialreview on the on the basis of constitutional constructions. It is, Ibelieve, a harder case to make out that courts should have theauthority to trump the actions of elected officials merely on thebasis of constitutional constructions."

Despite such concerns, I have always recognized some rolefor the courts in engaging in constitutional construction. Mostfundamentally, the power of judicial review itself is plausiblyunderstood as a construction of the Constitution. Similarly, theways in which the courts ought to exercise the power of judicialreview are not a matter to be resolved by constitutionalinterpretation. Standards of deference, methods of constitutionalinterpretation, and the like are themselves ultimately a matter ofconstitutional construction. The argument that judges shouldgenerally limit themselves to enforcing interpretations, thatjudges should be originalists, or that judges should adopt a clearmistake rule when exercising judicial review would be a claimabout how an indeterminate feature of the constitutional schemeought to be settled. Judges would not be alone in developing,establishing and maintaining such constructions, but they wouldnecessarily play a central role. Other, more substantively

14. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION 11 (1999).15. Robert M. Cover, Nomos and Narrative, 97 HARv. L. REv. 4, 40 (1983).16. See Whittington, supra note 14, at 46-50.17. WHITTINGTON, supra note 14, at 6.18. See Keith E. Whittington, The Death of the Legalized Constitution and the

Specter of Judicial Review, in THE COURTS AND THE CULTURE WARS (Bradley C.Watson & Gary M. Quinlivan eds., 2002).



particular constructions may be particularly appropriate to thejudiciary, either because of their institutional focus or because oftheir subject matter. The federal exclusionary rule and theMiranda requirements can be understood as efforts atconstruction, building out the effective requirements ofconstitutional provisions beyond what the text strictly speakingmeans. Judicial constructions would encompass some of whatMitch Berman has characterized as "decision rules" or whatDick Fallon has characterized as constitutional"implementation."'

19

It would thus be overstated to think of the interpretation-construction distinction strictly in institutional terms.Constitutional interpretation may put the judiciary on thestrongest footing for exercising the power of judicial review andoverturning the actions of other government officials, but thereare circumstances in which judges like other political actorsmight engage in constitutional construction. When doing so, theyare undertaking a particularly political task, a creative taskinvolving normative choices in a realm of constitutionalindeterminacies. Their particular expertise and institutionalauthority as judges is undoubtedly lessened when operating inthe zone of construction than when on the firmer, traditionallylegal ground of interpretation. There are occasions when suchactions are unavoidable, as when determining how the power ofjudicial review ought to be exercised, and judicial constructionsof the Constitution are unlikely to occur in isolation from thedeliberations of other political actors. But there are otheroccasions when judicial constructions are, in principle, moreavoidable.

I have been persuaded over time that there is more roomfor courts in developing and maintaining constitutionalconstructions than I initially suggested. I am not inclined to thinkof every instance of a judicial doctrine or application of aconstitutional rule as a "construction" of constitutional meaning,but there certainly is space to recognize some judicial doctrinesas efforts at filling in the constitutional framework.2 ° Somewhat

19. Mitchell Berman, Constitutional Decision Rules, 90 VA. L. REV. 1 (2004); seealso RICHARD H. FALLON JR., IMPLEMENTING THE CONSTITUTION (2001).

20. At one level, the question of labels makes little difference, and whether judicialdoctrine as such is usefully labeled as a "constitutional construction" or viewed asparallel to or continuous with other phenomenon of that type is ultimately a matter ofanalytical pragmatism. My tentative inclination is to view, for example, the three-partLemon test or the stream of commerce doctrine less as constructions than as bureaucraticguidelines. Having construed the meaning of the relevant constitutional provision, the



more problematic but empirically common is the possibility ofcourts being called upon to implement, extend, and rationalizeconstitutional constructions that are more widely shared bygovernment officials in the political system generally. As theneo-Dahlian literature has highlighted, the relationship of thecourts to the other branches of government is often not strictlycountermajoritarian. Instead, the courts often act as partnerswith other government officials to implement a commonconstitutional vision, with judges sometimes acting when andwhere it is politically inconvenient or infeasible for electedofficials to do so.21 In that context, many political actors maywelcome the courts stepping in to construct constitutionalmeaning, resolve indeterminacies, and maintain consensualvalues in specific cases. The difficulty arises, however, when thatprocess becomes less consensual and power and influence shiftsinto the courts. So long as judges are acting as faithful agents toprovisionally maintain constitutional understandings widelyshared by other political actors, then their role in articulatingconstitutional constructions may not be objectionable. As theybecome innovators on behalf of constitutional understandingsthat are not widely shared by other political actors, then thelegitimacy of courts engaging in constitutional constructionwould seem to be limited.

III. AVOIDING CONSTRUCTIONS?"

It might be thought that constitutional construction isentirely avoidable, that the constitutional system could operateentirely in the realm of constitutional interpretation. If so, thenwe might think that constitutional constructions are a choicemade by political actors who seek to expand their own influenceand discretionary authority. Rather than limiting themselves to

Court in subsequent cases is less concerned with grappling with constitutional meaningthan with articulating a set of secondary rules that adequately embody thoseconstitutional understandings and that can be enforced by and against other governmentofficials. Judicial doctrines are one of the routine policy implications that might beexpected from the process of engaging in constitutional interpretation and construction.

21. See KEITH E. WHTrINGTON, POLITICAL FOUNDATIONS OF JUDICIALSUPREMACY (2007); Howard Gillman, Courts and the Politics of Partisan Coalitions, inTHE OXFORD HANDBOOK OF LAW AND POLITICS (Keith E. Whittington, R. DanielKelemen, & Gregory A. Caldeira eds., 2008); Mark A. Graber, The NonmajoritarianDifficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35 (1993);Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a NationalPolicy-Maker, 6 J. PUB. L. 279 (1957).

22. I am grateful to Gary Lawson for raising the issues discussed in this section.



constitutional interpretation, political actors may choose toengage in constitutional construction.

How might this work? We might imagine constitutionalconstructions are avoidable in two types of circumstances. Thefirst possibility is that a Constitution might be written such thatits terms are entirely clear, complete and determinate. Asufficiently clear and comprehensive constitutional documentwould render constitutional construction unnecessary. Allconstitutional issues could be addressed by reference tointerpretation of the text. In practice, no text will have thatdegree of clarity or comprehensiveness. There will always bepoints of indeterminacy or new constitutional practices,institutions or principles that will be developed beyond what isspecified in the text. The U.S. Constitution may seem to createmore room for construction because of its inclusion of abstractphrases and its relative difficulty of amendment, but even aconstitutional document that emphasized specific rules and thatwas easy to amend would be supplemented by a host of statutes,decisions, and practices that would create a workingconstitutional system. In practice, every Constitution is a"framework," not a "skyscraper. '' 3

The second possibility is that constitutional constructionsare precluded by baseline assumptions. If the constitutionalsystem had a sufficient set of default assumptions in place, thenany constitutional indeterminacies might be resolvable. Twofamiliar default rules might be mentioned. The clear mistakerule indicates that judges should defer to legislatures and upholda law unless its unconstitutionality is very clear. The principle ofstrict construction of enumerated powers indicates that Congressshould have to be able to positively demonstrate that it possessesa power under the Constitution in order to exercise it, otherwisethe power is retained by the states. It might well be possible inthe case of all constitutional controversies to identify a defaultrule that would indicate which side should prevail in the case ofinterpretive indeterminacy. Rather than constructing a newsubstantive answer in a constitutional controversy, we mightthink the appropriate response is to recur to the default rule anddo nothing more than interpret the Constitution.

There are at least three responses to this concern aboutdefault rules and whether they render constitutionalconstructions unnecessary. First, we should recall that the zone

23. Balkin, supra note 4, at 550.



of construction is properly delimited by constitutionalinterpretation. Constructions cannot be used to alter, revise oramend the constitutional text, properly interpreted. If oneconcern about the interpretation-constructions distinction is thatit becomes a vehicle for exploiting constitutional indeterminaciesin order to expand judicial power or the scope of federalauthority, then this misconstrues the role of construction vis-A-vis interpretation. If interpretation determines that theproduction of goods is outside the scope of the InterstateCommerce Clause, for example, then construction cannot alterthat conclusion and expand federal regulatory authority. Theidea of construction does not authorize government officials tocontradict the constitutional text and its understood meaning.The idea of construction describes how political actors workwithin and around that constitutional skeleton.

Second, for the most part default rules are themselves bestunderstood as constructions. The Constitution providesrelatively little guidance for most default rules that we mightwant to develop. A faithful interpreter would be hard-pressed todiscover a determinate set of default assumptions embedded inthe Constitution. Nonetheless, default rules are an appropriateconstitutional subject, and there is a ready set of constitutionalmaterials that can be used to construct arguments about whatkinds of default rules would be most suitable and desirable for acountry such as ours. Should judges adopt a "clear mistake rule"and work with a default that laws are constitutional? Shouldjudges adopt a "presumption of liberty" and work with a defaultthat laws are constitutionally dubious and require justification?Is a strict construction of enumerated powers which assumes thatnational powers that cannot be specifically justified are reservedexclusively to the states best in keeping with our federal system?Or is a broad construction of national powers that assumes thatfederal power is constitutional unless it conflicts with specificprohibitions or cannot be grounded in any reasonable reading ofa grant of power more appropriate to the national union? Itwould certainly be possible to choose among these, and other,default rules, and as a result hem a given political decision-maker in. Once the default rule is in the place, the decision-maker knows what to do when she encounters constitutionalindeterminacy. She knows that policymaking discretion shouldnow pass from actor X to actor Y. When in doubt, the courtshould uphold the law (or strike it down); federal power shouldbe disfavored (or favored); etc. Putting the default rules in place,



however, is not a mechanical or a purely interpretive task. Thedefault rules are themselves (properly) part of what politicalactors have struggled over and rearranged over time. They havebeen constructed and reconstructed. Once in place, they can beinterpreted and applied, but the development of the default rulesis a task for constitutional construction.

Third, default rules are most relevant when thinking aboutcertain contexts in which constitutional controversies arise. Inparticular, default rules are helpful for dispute resolution and formaintaining clean lines of institutional responsibility. If acomprehensive set of default rules were to be put in a placewithin a constitutional system, they might reduce the need forconstitutional construction to deal with indeterminacies on acase-by-case basis, but they would not make constructionsentirely unnecessary. Default rules are unlikely to eliminate allindeterminacy. They require further refinement and develop-ment themselves. That is, once agreement has been reached onthe big issues, further work must often still be done constructingmeaning on the margins of the initial settlement and resolvingremaining indeterminacies. The case of enumerated powersprovides an example. The old-school Jeffersonians agreedamong themselves on the importance of strict construction andon the basic principles of enumerated powers. They accepted adefault rule that when in doubt about congressional powers,make the assumption that Congress did not have the authority toact and that the power was instead reserved to the states. Theysoon disagreed among themselves, however, about wheresufficient doubt about congressional power crept in. The marginsof congressional power still needed to be defined. PresidentsJefferson, Madison, and Monroe all disagreed among themselvesover the precise formulation for thinking about the problem offederal authority over internal improvements. Within the broadcontours of strict constructionist thinking, the detailed balancingof the needs of state and nation, the competing conceptions ofstate sovereignty and their demands, and the calculus of threatsposed to the constitutional design and social welfare could leadto different conclusions about what specific rules should guidepolicymakers in the case of internal improvements. 24 Strictconstructionism structures and guides constitutional argumentand decisionmaking. Such default rules do not avoid the need for

24. See HOWARD GILLMAN, MARK A. GRABER, & KEITH E. WHITrINGTON,AMERICAN CONSTITUTIONALISM (forthcoming).



further constitutional deliberation and decisionmaking. Theyconcentrate and narrow the scope of those deliberations.

Once we know, whether by default rule or otherwise, that agiven institutional actor has authority over a set of policydecisions, there is still an open question as to how that authorityought to be exercised. In many cases, how that authority shouldbe exercised is strictly a policy matter and takes place below thelevel of constitutional discourse. In other cases, however,constitutional constructions come into play to further constrainthe discretion of political actors. Constitutional constructionsmay provide substantive content or sets of principledconsiderations that delimit (or free up) how power is to beexercised. Conceptualizing constructions simply as a system ofdefault rules does not adequately account for or allow politicalactors to avoid making decisions about whether to create atradition of a two-term presidency, whether organized politicalparties should be regarded as legitimate, whether a two-partysystem should be fostered, whether to regard the protective tariffas constitutionally illegitimate, or whether literacy tests forvoting should be regarded as permissible. Default rules may tellsome government officials to keep out of the way as somedecisions are being made, but they do not tell political actorshow those decisions ought to be made. But constitutionalconstructions often are concerned with identifying appropriateoutcomes.

Constitutional assumptions and default rules can reduce theeffort that government officials need to make when theyencounter particular controversies and uncertainties. Inparticular, default rules might be recommended to minimize theextent to which judges actively engage in rendering newconstitutional constructions when faced with indeterminateconstitutional meaning. Nonetheless, the idea of constitutionalconstructions is not rendered irrelevant by the possibility ofdefault rules. Default rules may alter how political actorsexercise their responsibilities, but they do not avoid the need forsupplementing the interpretive process in order to have a fullyfunctioning constitutional system.

IV. WHAT CAN CONSTRUCTIONS DO FOR YOU?

The interpretation-construction distinction is an academicdistinction. More particularly, the concept of a constitutionalconstruction is an analytical category. The claim is not that this is



a familiar distinction or that "construction" (used in this way) isa familiar idea within American constitutional discourse.Political actors engage in the process of construing constitutionalmeaning and creating institutions and practices to accomplishtheir objectives. They do not necessarily conceptualize what theydo as operating in these terms. The value of recognizingconstitutional constructions is not in better replicating thelanguage of American constitutional practice. The value ofrecognizing the concept (whether under the label "construction"or something else) is that it helps the external observer betterunderstand how American constitutionalism works. With betteranalytical and empirical understanding, better normativetheorizing can follow. But as with any conceptual tool, thequestion is whether this one is helpful for performing tasks thatwe might be interested in.

The interpretation-construction distinction has particularutility for originalist normative theory.' Originalism has faced anumber of traditional criticisms, and the concept of constructionhelps to build a more compelling response to some of thosecriticisms. Originalism is often accused of being overly rigid, ofbeing unable to account for constitutional development, and ofbeing unable to grapple with indeterminacy in constitutionalmeaning. Subsuming originalist arguments about constitutionalinterpretation and judicial review within a broader constitutionaltheory that incorporates constitutional constructions alleviatesthose concerns. Originalism qua originalism may provide anadequate account of how the Constitution ought to beinterpreted and how courts ought to exercise the power ofjudicial review, but it may not describe the complete operationof the constitutional order. Originalists may benefit fromrecognizing more explicitly that constitutional meaning issometimes indeterminate and that there are limits as to whatanswers constitutional interpretation can provide. The questionthen becomes what should political actors do whenconstitutional interpretation runs out and constitutionalconstruction takes over. While some originalists might embrace

25. The interpretation-construction distinction is often associated with and viewedas characteristic of "the new originalism." It should be emphasized, however, that theinterpretation-construction distinction is separable from other features of recentoriginalist theorizing. There is nothing about the idea of constitutional constructions, forexample, that implies a commitment to a semantic meaning approach to originalistconstitutional interpretation, even if some individual scholars happen to have embracedboth arguments. On the new originalism, see also Keith E. Whittington, The NewOriginalism, 2 GEO. J. L. & PUB. POL. 599 (2004).



an active role for the courts in at least some circumstances inconstructing constitutional meaning in the interstices of theoriginalist text, others might demur. Either way, constructionsprovide a bridge between the fixed meaning of the interpretedtext of the originalist Constitution and the ongoing developmentof constitutional practices, values and rules. Without a notion ofconstitutional construction, originalists are tempted to deny orpaper over constitutional gaps or indeterminacies and tominimize the importance of constitutional developments that donot fit the originalist framework. Neither tendency is helpful ornecessary.

Making analytical space for constitutional constructions isuseful for constitutional theorists of a variety of persuasions.Originalists have been particularly concerned with (vexed by?)the tension between a fixed constitutional text and politicalchange and between the interpretive difficulties associated withour constitutional text and the desire for answers to ourcontemporary political problems. The idea of constructionsoffers a vocabulary and a toolkit for addressing some of thoseconcerns. Constitutional theory writ large has other concerns,but the idea of constructions may be useful in addressing someof those as well. Constitutional theory does not have a richvocabulary for discussing what political actors do when theyengage in constitutional argumentation or take action in thename of constitutional commitments. Often, any activity havingto do with the Constitution is simply called "interpretation."Regardless of how one understands interpretation (that is,regardless of whether one accepts originalism as either aconceptual or normative theory), such a broad category stripsthe term of its analytical utility and obscures the diversity ofways in which political actors relate to the Constitution.Likewise, to the extent that the idea of interpretation isconnected to normative theories and used to help legitimate theactions of judges, such arguments become more attenuated asthe notion of interpretation is loosened. The idea ofconstructions can help distinguish the various ways in whichpolitical actors engage with the Constitution and provide thestarting point for developing distinctive arguments for justifyingthose various activities. There is nothing about the idea ofconstructions that settles the issue of whether judges, forexample, should engage in them. Distinguishing betweeninterpretation and construction does focus attention on suchimportant normative questions as whether (and under what



circumstances) judicial judgments should trump legislativejudgments when constitutional meaning is indeterminate orabout how constitutional gaps are to be filled.

Opening the field of constitutional constructions also holdssome promise for shaping the agenda of empirical inquiry intoconstitutional politics and political development more broadly.Constitutional construction is not the only form of constitutionalpolitics, but recognizing the importance of constructive activityoffers a variety of opportunities for expanding the scholarlyagenda and improving our understanding of the dynamics ofconstitutional development. A concern with constitutionalinterpretation focuses attention on textual analysis, modalities ofargument, and standards of evidence. An interest inconstitutional construction calls our attention to the process bywhich new ideas come to the fore, practices are stabilized, andinstitutions are put into place. Although both interpretation andconstruction can occur throughout the political arena,interpretive arguments tend to center around the courts.Recognizing constitutional constructions potentially decentersthe scholarly agenda so as to take greater account of the range ofactivity occurring throughout the political sphere by a range ofactors. Constructions also highlight the process of political andconstitutional development over time. The constitutional choicesand debates of today are made within the context of thepractices, institutions, and ideals that had been built up overprior debates and decisions. The study of constitutionalconstructions focuses our attention not only on arguments overwhat the Constitution means but also over how theconstitutional system works, not only over how the Constitutionis interpreted but also over how political actors struggle over theauthority to interpret and what the consequences of pastconstitutional controversies might be for the shape of currentones.

The idea of constitutional constructions can play a rolewithin normative constitutional theory, but the starting point isto better capture a distinction within constitutionalargumentation and practice. The ideal of interpretation does notadequately represent what judges or political actors often do inregard to the Constitution. The effort of discovering what thetext says is ultimately distinguishable from making choices aboutwhat to do when the text is silent. Much of our workingConstitution consists of the choices that we have made in theinterstices of the interpretable Constitution. Constitutional



constructions have supplied rules, practices, and institutions thatwe have found satisfying, even when constitutionalinterpretation had little to offer. They are how we live with awritten Constitution.


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