Principles of

Constitutional
Construction

and indications of meanings that can be

inferred from what is not said, among other
methods of analysis.
There is also a question of whether the
meanings should be taken from the public
meanings shared among the literate

Constitutional interpretation, or

populace, the private meanings used among

constitutional construction, the term more

the drafters and ratifiers that might not have

often used by the Founders, is the process

been widely shared, or the public legal

by which meanings are assigned to words in

meanings of terms that were best known by

a constitution, to enable legal decisions to be more advanced legal scholars of the time.
made that are justified by it. Some scholars

Most of the U.S. Constitution appears to

distinguish between "interpretation"

have been written to be understood by

assigning meanings based on the meanings

ordinary people of that era, although people

in other usages of the terms by those the

then were much more literate in the law

writers and their readers had probably read,

than people are now. However, many of its

and "construction" inferring the meaning

words and phrases are fairly deep legal

from a broader set of evidence, such as the

terms that were only well understood by a

structure of the complete document from

few of the legally educated Founders, even

which one can discern the function of

though the general population probably had

various parts, discussion by the drafters or

a rudimentary understanding of them.

ratifiers during debate leading to adoption

There is a problem with the "original public

("legislative history"), the background of

meaning" formulation, because while the

controversies in which the terms were used

meanings of constitutional terms were

that indicate the concerns and expectations

"public" in the sense that they were not

of the drafters and ratifiers, alternative

"private" or "secret", they were not

wordings and their meanings accepted or

necessarily familiar to ordinary people of the

rejected at different points in development,

era. More accurate would be "legally

educated and still learning public meaning",

verification comes with being able to predict

because many of the Founders themselves

what one of them will say in a writing one

used terms that they had to research to find

hasn't read yet. Becoming adept at doing so

the meanings of. An example of this can be

can reassure one that one has "gotten into

seen in the comments by Dickenson in the

their heads". But that is not something one

Federal Convention Aug. 29, 1787, about ex

can demonstrate to others.

post facto only applying to criminal cases,

after researching the topic in Blackstone's
Commentaries. So since we can presume the
Founders mostly agreed on the writers they
considered authoritative on legal usages, we
can reasonably refer to the writings of those
other writers to find the meanings the
Founders intended even if the Founders
themselves had not yet done the research to
fully master the concepts.

This leads to the admonition that the

English used in the Constitution and other
legal documents of the 18th century should
be read as a foreign language, putting aside
today's meanings of what seem to be the
same words we use today, and attempting to
decode the meanings from various clues we
can find. This is not only wise for 18th
century English, but for almost any
communications, even among people who

For constitutional terms the denotata are not communicate with one another daily,
empirical objects so much as ideas, that is,

because no two people mean precisely the

mental models, that do not, for the most

same thing by the same words on every

part, have the advantage of some formal

occasion. When both speaker and listener

scientific models of being representable in

are alive they are able to interrogate one

mathematical or computer formalisms that

another to arrive at a common meaning, but

we can examine externally. In particular,

when the author is dead we have to find

they are ideas that existed in the minds of

evidence in other things he or his

persons long dead, so we have to develop

correspondents wrote.

mental models of their mental models

("theory of mind") based on the things they
read and wrote. That can be done. The

Constitutional controversies are about

whether an official act is consistent with,
and authorized by, a constitution or

constitutional statute or court decision.

Meaning of words may be ascertained by

Since a constitution is a law, and the

associated words. 3 T.R. 87.

supreme law within its domain, and

authorizes statutes and other official acts

2.

which have a textual expression, the

principles of constitutional interpretation are
essentially the same as the principles of
statutory or judicial interpretation.

1.

Historical. Decision based less on the

actual words than on the understanding
revealed by analysis of the history of the
drafting and ratification of the law, for
constitutions and statutes, sometimes called
its legislative history, and for judicial edicts,

Most legal scholars recognize seven main

the case history. A textual analysis for words

methods of judicial decisionmaking: textual,

whose meanings have changed therefore

historical, functional, doctrinal, prudential,

overlaps historical analysis. It arises out of

equitable, and natural, although they may

such Latin maxims as Animus hominis est

differ on what each includes, and there is

anima scripti. Intention is the soul of an

some overlap among them.

instrument. 3 Bulst. 67.

Textual. Decision based on the actual

3.

Functional. Also called structural.

words of the written law, if the meaning of

Decision based on analysis of the structures

the words is unambiguous. Since a law is a

the law constituted and how they are

command, then it must mean what it meant

apparently intended to function as a

to the lawgiver, and if the meaning of the

coherent, harmonious system. A Latin

words used in it have changed since it was

maxim is Nemo aliquam partem recte

issued, then textual analysis must be of the

intelligere potest antequam totum perlegit. No

words as understood by the lawgiver, which

one can properly understand a part until he

for a constitution would be the

has read the whole. 3 Coke Rep. 59.

understanding of the ratifying convention or,

4.
if that is unclear, of the drafters. Some Latin
maxims: A verbis legis non est recedendum.
From the words of the law there is not any
departure. 5 Coke 118. Noscitur sociis.

Doctrinal. Decision based on

prevailing practices or opinions of legal
professionals, mainly legislative, executive,
or judicial precedents, according to the meta-

doctrine of stare decisis, which treats the

considerations as whether a case is "ripe" for

principles according to which court

decision, or whether lesser or administrative

decisions have been made as not merely

remedies have first been exhausted. A Latin

advisory but as normative. Some Latin

maxim is Boni judicis est lites dirimere. The

maxims are: Argumentum simili valet in

duty of a good judge is to prevent litigation. 4

lege. An argument from a like case avails in

Coke 15.

law. Coke, Littleton, 191. Consuetudo et

communis assuetudo ... interpretatur legem
scriptam, si lex sit generalis. Custom and

common usage ... interpret the written law, if

it be general. Jenk. Cent. 273. Cursus curi
est lex curi. The practice of the court is the
law of the court. 3 Buls. 53. Judiciis
posterioribus fides est adhibenda. Credit is to
be given to the latest decisions. 13 Coke 14.
Res judicata pro veritate accipitur. A thing
adjudicated is received as true. Coke,
Littleton, 103.
5.

Equitable. Also called ethical.

6.

Decision based on an innate sense of justice,

balancing the interests of the parties, and
what is right and wrong, regardless of what
the written law might provide. Often resorted
to in cases in which the facts were not
adequately anticipated or provided for by the
lawgivers. Some scholars put various
balancing tests of interests and values in the
prudential category, but it works better to
distinguish between prudential as balancing
the interests and values of the legal system

Prudential. Decision based on factors from equitable as balancing the interests and
external to the law or interests of the parties

values of the parties. It arises out of the

in the case, such as the convenience of

Latin maxim, quitas est perfecta qudam

overburdened officials, efficiency of

ratio qu jus scriptum interpretatur et

governmental operations, avoidance of

emendat; nulla scriptura comprehensa, sed

stimulating more cases, or response to

sola ratione consistens. Equity is a sort of

political pressure. One such consideration,

perfect reason which interprets and amends

avoidance of disturbing a stable body of

written law; comprehended in no code, but

practices, is also the main motivation for the

consistent with reason alone. Coke, Littleton,

doctrinal method. It also includes such

24.

7.

Natural. Decision based on what is

society, which form a hierarchy of authority,

required or advised by the laws of nature, or

with the constitution of nature superior to

perhaps of human nature, and on what is

the constitution of society, and the

physically or economically possible or

constitution of society superior to the written

practical, or on what is actually likely to

constitution of government. The doctrinal,

occur. This has its origin in such ancient

prudential, and equitable methods are not

Latin maxims as: Jura natur sunt

interpretion or construction of any of these

immutabilia. The laws of nature are

constitutions, although judges often claim

unchangeable. Jacob. 63. Impossibilium

they are. There is an misguided tendency

nulla obligatio est. There is no obligation to

among modern judges to misrepresent what

do impossible things. D. 50, 17, 185. Lex

are essentially prudential or equitable

non cogit ad impossibilia. The law does not

decisions as constitutional constructions.

compel the impossible. Hob. 96. Lex

Too many lawyers are complicit in this by

neminem cogit ad vana seu inutilia

casting what are essentially prudential or

peragenda. The law requires no one to do

equitable arguments into constitutional

vain or useless things. 5 Coke 21. Legibus

terms. There is nothing inherently wrong

sumptis desinentibus, lege natur utendum

with making prudential or equitable

est. Laws of the state failing, we must act by

decisions. The U.S. Constitution confers both

the law of nature. 2 Rol. Rep. 98.

law and equity jurisdictions on federal

courts, as do the state constitutions. The

Of these, only the first three, textual,

problem comes with treating such decisions

historical, and functional, are methods of

as establishing precedents, especially

interpreting or constructing the written

binding ones. It is one thing to treat a

constitution of government, and the historical

decision as a precedent that clarifies some

and functional methods may be more a

ambiguity in the constitution, but quite

matter of construction than interpretation.

another to essentially insert a prudential or

The last, natural, is construction (not

equitable decision into the constitution as a

interpretation) of the unwritten constitution

kind of amendment. Such decisions must

of nature, or the unwritten constitution of

not conflict with constitutions or

constitutional statutes, but often do.

Constitution", and provides for only four

Doctrinal and prudential decisions are more

methods by which it may be amended, all of

troublesome. The doctrinal method may be

which apply only to the written document.

compatible with the written constitution of

2.
government if it merely involves clarifications

The authority for provisions of the

Constitution is the ratifications and state

of ambiguities in the original text, but not

when those doctrines depart from original

admissions. Current consent or

legal understanding, as they sometimes do.[1]

acquiescence, or lack thereof, to the

The prudential method may be justifiable as

Constitution or any practice, does not affect

necessary to handle large caseloads, but

the original constitutive acts, and has no

often neglect to render justice in particular

authority, unless expressed through

cases, especially when they involve

adoption of amendments as provided in

avoidance of controversy rather than a desire Article V.

to settle all issues brought before the court.

1.

3.

Provisions of the Constitution are

Within these methods, we can, by study of

mutually consistent. There are no internal

the writings of the Founders, and the

logical contradictions, except that a

writings they read, elicit such principles for

provision of an amendment inconsistent with

interpreting or constructing the Constitution

a previous provision supersedes that

for the United States as the following:

provision.

The Constitution is the written

4.

None of the words are without force

document. Although it may be considered to and effect, except those superseded by

include the understandings of its words as of amendments, unless such amendments
the time of ratification, it does not include

are repealed. Except for the statement of

the subsequent body of practices or

purpose in the preamble, every word was

precedents upon which constitutional

intended by the Framers to be legally

decisions might be based, which may or may

normative, and not just advisory,

not be consistent with it, or authorized by it.

declaratory, aspirational, or exhortatory.

The written document refers to itself as "this

5.

Verba intelligi ut aliquid operantur debent.

the nation or any branch, level, office or

Words should be interpreted to give them

department should have, were actually

some effect.

delegated.

Rights and powers are

Original "intent" is functional, not

complementary. Every right recognized by

motivational. The private motives of the

the Constitution is an immunity, that is, a

Framers or Founders are irrelevant and

right against a positive action by

largely unknowable, and likely to have been

government, and is equivalent to a

diverse. The common law rule of

restriction on delegated powers. Conversely,

interpretation understood by the Founders

every delegated power is a restriction on

was to discern the functional role of

immunities. An immunity may be expressed

elements of the law, not the private purposes

either as a declaration of the right, or as a

of the lawgivers.

restriction on powers.
6.

8.

9.

There are no redundancies within

The ratification debates are the

best evidence of original understanding.

the original unamended Constitution.

The arguments of those opposed to

However, amendments may be alternative

ratification are not just the positions of the

ways of expressing equivalent content in the

losers in the debates, which some might

original unamended Constitution or previous dismiss as not indicative of original

7.

amendments. More specifically, the Bill of

understanding. As the debates proceeded,

Rights added no new content not implicit in

understandings evolved and clarified, and

the original unamended Constitution, except

positions changed. Most opponents were

the twenty dollar rule of the Seventh

satisfied by adoption of a Bill of Rights, and

Amendment.

by assurances by the proponents concerning

The Constitution was intended to

define a functionally complete and
harmonious system. That does not mean,
however, that all powers anyone might think

how the words of the Constitution would be

interpreted, and those assurances must be
considered part of the original
understanding. That means that a

construction to which the more significant 11.

Delegated powers cannot be

"anti-federalists" would object is almost

subdelegated. The U.S. Constitution vests

certainly incorrect.

all legislative powers in Congress, and all

10.

judicial powers in the Supreme Court and

Powers are narrow, rights broad.

The entire theme and tenor of the ratification

debates was that delegated powers were to

the actions of their subordinates. There can

consistent with the words, and rights as

broadly as possible, with the presumption in
favor of the right, and the burden of proof on

interpretatur. A power is strictly interpreted.

In dubiis, non prsumitur pro potentia. In
cases of doubt, the presumption is not in
favor of a power.

expressed. Executive branch officials may

subdelegate but must remain responsible for

be interpreted as strictly as possible,

those claiming a power. Potestas stricte

inferior courts, except as specifically

be no authority exercised that is not

accountable through constitutional
officials.Delegata potestas non potest
delegari. A delegated power cannot be
delegated. 9 Inst. 597.

12.

The power to regulate is not the

power to prohibit all modalities of

something. It is only the power to issue
prescriptions to "make regular", enforceable
only by deprivations of property or privileges,
not of life, limb, or liberty. There must always
be some modality that is not prohibited.
13.

Implied powers are only to "carry

into Execution" an expressed power and

not to do whatever is necessary to
achieve the intent for which a power
might be exercised. Delegation of a power is
delegation of the right to make a certain kind

of effort, not to do whatever is necessary to

legal tradition they invoked in the words they

get a desired outcome.

chose. Thus, they referred to authors like

14.

There can be no common law

Blackstone and Coke when they were unsure

what they meant, and so must we.

crimes. They are in conflict with the

18.
prohibitions on ex post facto laws and bills of
attainder.
15.

Rights may not be disabled or

unduly burdened by legislative or

Early practice indicative but not

dispositive. Early practice by the Founders

may provide evidence of their aspirations in
the words they chose, but should not be
regarded as perfect expressions of their

executive process. "Due" process is judicial

intent. Practice can represent compromise

only, involving the granting of a petition to

with practical concerns and may lag behind

disable a right of the defendant, with the

the ideals contained in the words.

burden of proof on the plaintiff or

19.
prosecutor, and with the defendant having at

Mental models of mental models.

least those minimum protections that

Each of us has a mental model of the world

prevailed during the Founding. with similar

that includes a model of the mental models

disablements having similar standards of

others have of the world. Communication is

proof and protection.

possible only to the extent that our mental

models of the mental models of others are

16.

There is no right without a remedy. somehow accurate or congruent. When a

Ubi jus ibi remedium. There must always be

lawgiver issues a law, a command to others

an accessible forum in which a complainant

for future compliance, he is relying on others

has oyer and terminer for any petition.

to understand his words the way he does,

17.

The Founders were learning.

"Original meaning" is not just about what

the Founders consciously meant at the
moment of ratification, but includes what
they would discover with further study of the

and those others are relying on him to use

words with the meanings they have for them.
But words are an imperfect way to convey
meanings, and if the recipient of the
command cannot interrogate the lawgiver for

his meaning, he must try to improve his

3.

mental model of the lawgiver's mental model

by such means as learning to accurately
predict what the lawgiver will write about
matters the recipient has not previously
read.
20.

Use the (common law) rules of

interpretation accepted by the lawgivers.
The problem with the original methods
approach is to identify and state such
methods, which at the time of the Founding
were mostly not explicit, but an art practiced

Find the right level of abstraction.

by lawyers and judges, something they

It was common for the Founders to use

learned to do but probably not to explain,

somewhat more concrete words to mean

like horse riding or archery. The main

broader principles. Thus, "press" or "arms" is evidence we have of what they were are the
not limited to the technology of the time, but
refers to the general function they served.
"Militia" does not mean merely those legally
obliged to respond to an official call-up, but
defense activity generally.
Three approaches

Maxims, some of which are listed here.

It is important to keep in mind that the
meaning we seek is not our meaning, but the
meaning the words had for the lawgivers, to
the extent we can discern what what was,
and that it was the public legal meaning, not
the lay meaning of the streets. That is really

We have three main approaches to

a different language, then as now.

interpretation or construction:
It is only important to focus on those words
1.

Seek original intent, or what the

lawgiver hoped the words would accomplish,
which in turn can be divided into:

1.

Motivational intent

and phrases, about 80, that present the

interpretative problems. Most of the
Constitution does not. There are 53 in the
original Constitution, 24 in the Bill of Rights,
and 3 in the later amendments, although

2.
2.

Functional intent
Seek original public (legal) meaning of
the lawgiver.

others might count them differently. They

are highlighted here. That is a small number,
which it should be possible to thoroughly

and canonically explore and discover the

original public legal meanings of through
historical linguistic research, and present
our reports to judges so they don't have to
become expert legal historians. If we were to
bear down on checking off every one of
those, we might eventually settle most of the
interpretative disputes, or at least until
someone found more historical evidence.

Notes:
1. Gary Lawson, The Constitutional Case
Against Precedent, 17 Harv. J.L. & Pub. Pol'y
23, 24 (1994).