The Invisible Constitution in Comparative Perspective

Lawrence B. Solum

Constitutional construction will be required. When constitutional construc-

tion operates within a construction zone created by the constitutional text, we 

can say that the construction is “bound to the text.”

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Theories of constitutional interpretation provide an account of the commu-

nicative content of the constitutional text. Theories of constitutional construc-

tion are different: they are normative theories about what we ought to do with that 

content. Characteristically, originalist theories of constitutional construction 

will respect the Constraint Principle – they will only sanction constructions 

that are consistent with the communicative content of the text. In easy cases, 

construction may take place without resort to extra-textual sources; the text 

may be sufficient to provide the legal content that resolves the cases.

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 But in 

hard cases, even originalists may resort to extra-textual sources to provide legal 

content.

Consider the First Amendment freedom of speech. Because the text is gen-

eral, abstract, and vague, we are in the construction zone. In a particular case, 

more than one outcome may be consistent with the communicative content 

of the constitutional text. If we look to free speech doctrine as a whole, there 

are multiple versions of the doctrine that are consistent with the communica-

tive content of the doctrine. This means that we will need to look outside the 

four corners of the text to resolve at least some possible cases that could arise 

under the First Amendment freedom of speech.

Consider two possible approaches to the phrase “freedom of speech.” The 

first approach assumes that “the freedom of speech” was a phrase of legal 

art that referred to a preexisting legal doctrine. The second approach assumes 

that “the freedom of speech” was a phrase of political philosophy that refers 

to the general concept of freedom of speech. These two approaches are offered 

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The phrase “bound to the text” is being used in a stipulated sense. Constructions that are 

bound to the text are stipulated to be constructions that operate within the zone of underde-

termination created by vague or irreducibly ambiguous terms. A fuller account would require 

consideration of additional sources of underdetermination: such sources might include open 

texture, gaps, and contradictions.

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In some cases, this will mean that the legal content of constitutional doctrine will be sufficiently 

determined by the communicative content of the text to determine the outcome of the case. In 

such cases, the activity of construction consists in translating the communicative content of the 

text into the equivalent legal content (or constitutional doctrine). These are likely to be “easy cas-

es,” and because they are easy, the activity of construction may go unnoticed or seem automatic. 

Here is an example: Article One provides that each state shall have two senators. Because 

senators are human beings, borderline cases do not arise. Senators Boxer and Feinstein are two 

senators – not one or three. Constitutional construction is at work here – the constitutional 

practice (which determines legal effect) is to follow the original meaning of the Constitution. 

It could be otherwise; someone might advocate for an amending construction that reappor-

tioned the Senate by population. But on this issue, living constitutionalists and originalists are 

united in (tacitly or consciously) endorsing the Constraint Principle.

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