CFP: Interpretation & Construction in Constitutional Law

Steven G. Gey
Call for Papers

    At the 2010 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel exploring the distinction between “interpretation” and “construction” in constitutional law.   One paper from an untenured, non-adjunct, faculty of law member will be included.  Its author will join a panel that will include Professors Mitch Berman, Rick Hills, and Keith Whittington, among others. The author must be teaching at an AALS member or AALS fee-paid law school.

    To submit an entry, send an abstract of your paper (five pages or less, single-spaced) electronically to Pam Davis:  pddavis1@samford.edu.  She is the assistant to executive committee member Brannon P. Denning.   Please include your name, institutional affiliation, and contact information on a cover sheet only.  All entries will be subject to a blind review by various members of the Executive Committee of the Section on Constitutional Law.

Submissions must be received by no later than May 1, 2009. Late submissions will not be accepted.   The author of the abstract that is chosen will be expected to produce a 20 page (single-space) manuscript by the time of the AALS panel.  If you have any questions, please e-mail Professor Denning (bpdennin@samford.edu).

From the panel description:

Recent work in constitutional theory has posited a distinction between “constitutional interpretation” and “constitutional construction.”  The core idea is that interpretation is concerned with the linguistic meaning of the constitutional text, whereas construction implements and supplements that meaning.  This idea is related to other recent conversations in constitutional theory, including discussion of “the new doctrinalism,” constitutional implementation, and the distinction between constitutional rights and remedies.
Constitutional theorists have discussed the interpretation-construction distinction in diverse ways.  Some scholars have suggested originalist constitutional interpretation can be reconciled with a living-constitutionalist approach to constitutional construction.  Others have suggested that judicial review should be limited to the activity of constitutional interpretation, while the political branches should bear primary responsibility for construction.  Some originalists criticize the distinction on the ground that it opens the door to judicial construction that is unconstrained by original meaning.  In an earlier era, legal realists critiqued the distinction on the ground that interpretation of linguistic meaning and construction of legal doctrine cannot be separated in practice.
This program will evaluate and explore the interpretation-construction distinction from a variety of angles.  The questions raised may include the following: (1) Does the interpretation-construction distinction capture a real difference between modalities or stages of constitutional practice? (2) What is the basis for the distinction?  (3) Is constitutional construction by judges legitimate or should construction be limited to the political branches, or is the elaboration of constitutional doctrine an integral part of the judicial enterprise?  (4) What norms should govern constitutional construction?  (5) What role should precedent, historical practice, politics, social norms, and/or considerations of justice and morality play in the construction of constitutional doctrine?  (6) Should constitutional construction be confined by the limits imposed by constitutional interpretation, or should constitutional actors sometimes adopt amending or saving constructions that are inconsistent with the constitutional text? 

The Paper Award is named in honor of Professor Steve Gey.

RR