At Legal Theory Blog, Lawrence Solum: Why Did Justice Jackson Cite the Interpretation-Construction Distinction in Wolford v. Lopez? From the introduction:
I was surprised and delighted to learn that Justice Jackson had cited Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013), in her dissenting opinion in Wolford v. Lopez, 609 U. S. ___ (2026) (slip op., at 15 n.8) (Jackson, J., dissenting). Justice Jackson cited me to establish the interpretation-construction distinction. “Interpretation” is the activity that discovers the meaning or communicative content of constitutional provisions. “Construction” determines their legal effect, including the articulation of implementing doctrines and the decision of particular cases. Naturally, I was curious: why had Justice Jackson invoked a general and abstract distinction from originalist constitutional theory in a case about the Second Amendment?
To answer that question, we need to back up. In Wolford, the Supreme Court held that Hawaii could not require a concealed-carry permit holder to obtain a property owner’s express consent before carrying a firearm onto private property open to the public. The holding applies New York State Rifle & Pistol Ass’n v. Bruen, 597 U. S. 1 (2022), and the Court divided 6–3 along familiar lines. Jackson’s citation to my article is relevant to a methodological exchange between Justice Barrett and Justice Jackson over the structure of Bruen’s first step. That exchange is, in the vocabulary of contemporary originalist theory, a disagreement about where interpretation ends and construction begins.
Bruen prescribes two steps. At the first, a court asks whether the Second Amendment’s “plain text” covers the regulated conduct. At the second, the court asks whether the challenged regulation is consistent with the Nation’s historical tradition of firearm regulation: the second step required the Bruen Court to devise an implementing rule, the much-discussed historical analogue test. The interpretation-construction distinction maps onto this structure. Interpretation ascertains the communicative content of the constitutional text—the linguistic meaning the words contributed at the time of framing and ratification: Bruen follows Heller by interpreting “the right to bear and keep arms” as a reference to a pre-existing legal right. Construction determines legal effect—the doctrines and decisions that give the text application, including in cases where communicative content runs out. Bruen engaged in construction when it adopted the historical analogue test: that test is the implementing doctrine that fixes the current legal effect of the communicative content of the operative text.
That brings us back to Wolford and the exchange between Justices Barrett and Jackson. The question that divides Barrett and Jackson is how much of Bruen’s first step is interpretation and how much is already construction. …
Related, also at Legal Theory Blog, the Legal Theory Lexicon entry for “Constitutional Theory”. From the introduction:
… When a court asks whether the Constitution should be interpreted according to its original meaning or its evolving meaning, that is a question of constitutional theory. When commentators argue about whether unelected judges should have the power to strike down laws passed by an elected legislature, that too is constitutional theory. So too is the question of why the Constitution binds us at all, given that it was ratified by an unrepresentative group of people who are now long dead. The cases assume answers to these questions; constitutional theory makes the questions explicit and examines the answers.
This entry provides a map. It begins with the idea of a constitution and the basic distinction between provisions that allocate government power and provisions that protect individual rights. It then offers a short history of American constitutional theory, introducing the major ideas as they emerged. Next it takes up the central interpretive debate between originalism and living constitutionalism. Finally, it offers a brief introduction to comparative constitutional theory, which reminds us that the American constitutional arrangement is one option among many rather than the only way a constitutional democracy might be designed.
Posted at 6:01 AM