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The Constitutional Interpretation/Construction Distinction: A Useful Fiction, Laura A. Cisneros

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Part I briefly describes the interpretation/construction distinction as an artificial construct - a fiction." The many commentaries on the subject encompass such a wide range of positions that the distinction, to the extent it truly exists at all, does so in the eye of each individual beholder. In Part II, I argue that the distinction, even if understood as a fiction, is nevertheless relevant because it can be used to bridge the expanse between originalist and nonoriginalist (or, if one prefers, between "strong" and "weak" originalist) theories of American constitutional interpretation. Put another way, the fiction is useful. In Part …