The Invisible Constitution in Comparative Perspective

Commentary 95. For example, Jeffrey Goldsworthy uses the phrases “clarifying interpretation” 

and “creative interpretation” to refer to what I call “interpretation” and “construction.” See 

Jeffrey Goldsworthy, “The Implicit and the Implied in a Written Constitution” in Rosalind 

Dixon and Adrienne Stone The Invisible Constitution in Comparative Perspective (Cambridge: 

Cambridge University Press, 2018), 112.

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Ibid

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76 

Lawrence B. Solum

his time. Napoleon was not tall, although at 5

′6″ he was of average height for 

his time (though British propaganda depicted him as short). There are persons 

who are clearly tall and clearly not tall, and there are borderline cases: for 

example, in the United States in the twenty-first century, males who are 5

′11″ 

are neither clearly tall nor clearly not. Finally, a given word or phrase can be 

both vague and ambiguous. Cool is ambiguous, and in the temperature sense, 

it is also vague.

In addition to “vagueness” in this strict sense, legal theory is also concerned 

with a related but distinct linguistic phenomenon, which we can call “open 

texture.” This phrase has a tangled intellectual history that I will not attempt to 

sort out on this occasion. For our purposes, I will stipulate that “open texture” 

includes the following: (1) multidimensional vagueness; (2) multiple criteria 

concepts with incommensurable dimensions; and (3) family resemblance 

concepts. We could slice and dice the conceptual terrain in various ways, but 

I will use “open texture” as an “agglomeration” term – that is, as a word that 

gathers distinct but related concepts together under a single word.

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 In the 

discussion that follows, I will use “vagueness” for the purposes of illustration; a 

more complete account would require explicit consideration of open texture 

as well.

How does the distinction between ambiguity and vagueness relate to the 

interpretation–construction distinction? Consider the case of ambiguity first. 

Many words and phrases have the property of semantic ambiguity. That is, 

when a word or phrase is considered acontextually, it can have more than one 

meaning. Consider the thought experiment of a message in a bottle. You are 

at the beach and you find a slip of paper that contains only the word “cool” or 

the phrase “domestic violence.” You can guess at the meaning, but you won’t 

know how the author was using the word because you lack information about 

context. Consider the same words as they appear in messages that provide 

additional context: “Hey dude, this message in a bottle thing is totally cool.” 

Or: “I am a victim of domestic violence. Please protect me from my father.” 

The additional context – in these cases provided by the sentence in which the 

word appears – is sufficient to resolve the semantic ambiguity.

In constitutional interpretation, ambiguity can usually be resolved by 

resorting to the publicly available context of constitutional communication. 

For contemporary readers, the phrase “domestic violence” is unambiguous. 

We know that it refers to things like insurrections, riots, and rebellions – not 

spousal, child, or elder abuse within a family. But we can imagine another 

constitution in which the phrase would be understood as referring to violence 

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I am grateful to Brian Slocum for suggesting the phrase “agglomeration term.”

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