Richard Kay

Document Type



Constitutional Law


In recent years, the literature of constitutional originalism has adopted a new concept, "constitutional construction." This Essay critically examines that concept. Contrary to some claims, the difference between "interpretation" and "construction" is not well established in common law adjudication. Contemporary descriptions of constitutional construction end up leaving some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is unavoidable because the constitutional text is inherently incomplete. It fails to provide a decision-rule for manyindeed for most-constitutional disputes. This conclusion follows, howeveronly when the Constitution is interpreted according to the "new" or "public meaning" version of originalism. At least in the context of constitutional adjudication, originalist interpretation seeking to identify the meaning of the text that was actually intended by the people whose assent made it law, leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side's interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.