The Invisible Constitution in Comparative Perspective

lenge of Originalism: Theories of Constitutional Interpretation (New York, NY:  Cambridge 

University Press, 2011), 42, 44.

11 

Larry Solum, Chapter 3 of this book.

12 

I have drawn this distinction since 1994: see Goldsworthy, chapter note, 162.

13 

Clarifying interpretation can, of course, often resolve problems such as ambiguity, but not 

always.

14 

Severance (i.e., excision) of terms in order to ensure constitutional validity goes beyond inter-

pretation, and amounts to judicial amendment.

15 

Goldsworthy, chapter note, 42, 62–3; J. Goldsworthy, ‘Interpreting the Constitution in Its Sec-

ond Century’ (2000) 24 Melbourne University Law Review 677, 699–701.

16 

Both (4) and (5) are discussed in Section 

4.5

. Creative interpretation licensed by human rights 

legislation such as the Human Rights Act 1998 (United Kingdom) includes several of these 

techniques.

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112 

Jeffrey Goldsworthy

It is therefore useful to distinguish between three different processes that are 

included in the broad term ‘interpretation’ when applied to legal texts:

  (1)  Clarifying Interpretation: revealing or clarifying a law’s pre-existing 

meaning(s), including any implied as well as express meanings;

  (2)  Creative Interpretation, comprising:

 

(a) Supplementing Interpretation: supplementing those pre-existing 

meanings in order to resolve indeterminacies; and

 

(b)  Rectifying Interpretation: changing those meanings in order to cor-

rect or improve the law.

It should be noted that most judges are reluctant to admit their creative 

role, which is partly why they use the same word, ‘interpretation’, without dis-

tinguishing between these different processes. But these distinctions can help 

in analysing the role of different interpretive principles and arguments (such 

as legal presumptions, maxims and canons of interpretation), including those 

that concern implications. Consider the first distinction I drew, between impli-

cations that are common to both ordinary language usage and legal usage and 

so-called implications that are peculiar to laws because they are determined 

by distinctively legal interpretive principles. I will argue that implications of 

the former kind are revealed by clarifying interpretation, whereas those of 

the latter kind are really added to legal texts through rectifying interpretation.  

I will call those of the former kind ‘genuine’ implications and those of the 

latter kind ‘fabricated’ implications. The word ‘fabricated’ is not used to insin-

uate illegitimacy; to the contrary, I will argue that some of them are fully 

justified.

17

Linguistics and philosophy of language have much to teach us about the 

nature of linguistic meaning and communication. They have little to say 

about supplementing or rectifying interpretation, which require legal, moral 

and political, rather than linguistic, judgments. But they can illuminate clari-

fying interpretation, which aims at revealing or clarifying the law’s pre-existing  

meaning(s), implied as well as expressed. In this regard, it is necessary to dis-

tinguish between ‘linguistic meaning’ and ‘legal meaning’. ‘Legal meaning’ 

is the meaning that judges ultimately assign to a provision, after applying all 

relevant interpretive principles and techniques; it results from clarifying, sup-

plementing and rectifying interpretation. It does not precede but is the con-

sequence of, legal interpretation. But clarifying interpretation is concerned 

with revealing or clarifying linguistic meaning that necessarily pre-exists legal 

interpretation.

18

17 

Ibid.

18 

One might ask why pre-existing meaning does not depend on special legal interpretive prin-

ciples as well as ordinary ones. The answer is that the function of legal interpretive principles  

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