In addition to the emphasis on public importance mentioned in the previous section, a characteristic position of the new originalists is the emphasis – in their vocabulary – on a distinction between “constitutional interpretation” and “constitutional construction.” Although the new originalists make this distinction, constitutional interpretation involves establishing the “public scope” of the constitution at the time of its ratification. (For “public importance,” see section 4.2.) Constitutional construction, as defined by some of the new originalists, implies constitutional jurisdiction in cases where the original meaning “expires,” “does not provide a single rule of law,” or “dictates no single application.” Barnett, 2013, p. 619; 1999, 645–46; Whittington, 1999a, p. 7. In such cases, the new originalists believe that an “act of creativity beyond interpretation” – “the construction of meaning” – is necessary. Whittington 1999a, 7th Solum (2010) and Barnett (2011) make the significantly different distinction in that they understand constitutional interpretation as the conclusion of the “legal effect” of a provision, including its contribution and application to certain cases (see Berman and Toh 2013 564-70). If, on the other hand, the interpretation of the law seeks to introduce a provision to the content of the law, the relevance of the different intentions of the legislature depends on the way in which those intentions affect the content of the law. Does the content of the law depend on the legal provision intended by the legislator? Or on what rule of law would a reasonable person in certain circumstances have intended to create a hypothetical coherent legislature in pronouncing the wording of the provision? Or perhaps what the legislator claims or has said? Normative arguments might be relevant at this stage. For example, there may be democratic reasons why legal intentions have a significant influence on the content of the law only if they are publicly available in certain authoritative sources. To ensure strict accommodation, the court developed the standard for rigorous scrutiny when reviewing freedom of expression cases. In order to withstand rigorous scrutiny, the government must demonstrate that the law is in the overriding interest of the state and that the regulations are implemented by the least restrictive means.
In R.A.V. v. St. Paul (1992), the Supreme Court overturned an order prohibiting the burning of crosses. The Court held that this regulation was not closely adapted and could suppress declarations in which the State had no substantial interest. Another significant departure from the simple assumption that the correct theory of legal interpretation simply follows true legal theory would take into account the abilities and limitations of legal interpreters. The consideration of limited rationality raises important questions for a theory of legal interpretation. Judges, to take a particularly large group, work with limited time and information and they are subject to human cognitive limitations and biases that are much discussed in recent literature. See the entry Bounded rationality. Given these facts, it may be counterproductive for judges to work directly to treat sources of law in a way that contributes to justice in the same way that they actually contribute to it. Overall, they could better identify precisely the ways in which sources contribute to the content of the law if they instead follow a relatively simple rule of thumb.  Similarly, we may also have special accounts for other participants in the justice system, such as legislators, law enforcement officers and police officers.
In their critique of intentionalism, contemporary textualists have emphasized the disorder and opacity of the legislative process and the importance of compromise in that process (see Manning 2001, 71-78; 2003, 2408-19; Easterbrook, 1983, pp. 540-41; 1988, 63–64; 1990, 444–48; 1994, 68; 2010, 916, 922; 2012, xxii; Scalia and Garner, 2012, pp. 392-93). Individual legislators who originally propose legislation may have a specific legal intent – to enact a particular legal standard. However, compromises must be made to ensure the adoption of legislation. Legislative agreements are often verbal rather than substantive, i.e. they often take the form of adding certain words to legislation without reaching agreement on the net impact of a change in wording. Indeed, compromises often succeed precisely because controversial issues remain opaque and unresolved. In the case of complex and controversial legislation, there may be no reason to believe that there is a coherent and findable legal intent.
(This is not to say that there is no semantic intention – to use these words – or a minimal intention – to change the law by passing this law.) Even leaving aside the metaphysical question of what would constitute a collective intention in the circumstances, it is often extremely implausible that there is a collective legal intent and that the courts, if it did, could reliably identify it. This chapter will focus on some of the positions described above, including textualism, intentionalism, teleoscepticism, and originalism of public importance. One reason for this focus is that the debate between textualism and intentionalism or purposivism has dominated recent theoretical discussion in the legal field. And in the constitutional field, originalism has set the conditions for debate. (As explained below, originalism of original intent is included in the discussion of intentionalism, and originalism of public meaning is included in the discussion of textualism.) For reasons of space, not all positions in this area can be examined in depth, and the emphasis chosen here provides a natural and timely opportunity to introduce many of the fundamental questions of legal interpretation. In recent decades, theorists of law and constitutional interpretation, in part in response to skepticism about actual legislative intent, have moved away from intention-driven narratives. An important trend has been textualism in the interpretation of the law and the originality of “public meaning” in constitutional interpretation. (Textualism is used here to encompass the public originalism of meaning, including the position of the so-called new originalists. ) Assertion | Limited rationality| Consequentialism | Constitutionalism | Empiricism: | logic Grice, Paul | Law: and language| Legal reasoning: precedent and analogy in | Meaning, theories of | Naturalism: in the philosophy of law| Nature of Law: Interpretivist Theories | Nature of the law: legal positivism | Pragmatist Philip Bobbitt, the best-known pluralist theorist of constitutional interpretation, has distinguished six modalities of constitutional argumentation. These include, for example, structural, ethical and regulatory argumentative modalities.
(Bobbitt, 1982; 1991). Bobbitt`s work does not describe existing practice, nor is it based on a broader underlying theory, such as what determines the content of the law. Instead, Bobbitt takes constitutional practices in general to legitimize the use of the various modalities, although in some cases he criticizes existing practices (Bobbitt 1982; 1991). In general, the theory of legal interpretation may take into account objectives other than the precise identification of the contribution of a provision. For example, it is often suggested that courts should stick to the clear meaning of a provision in order to create an incentive for good wording. Improving the wording of legal and other provisions can, in the long run, help legal interpreters to accurately identify the contributions of provisions and provide other benefits. In the short term, however, the objective of improving the drafting of legal texts may conflict with the objective of accurately identifying the contribution of a provision. The important question arises as to the extent to which the law should be interpreted in such a way as to pursue the first objective at the expense of the second. To take a very different example, there may be moral reasons why some types of mistakes are worse than others (or why some decision-makers` mistakes are worse than others` mistakes).
Such reasons may justify following methods that would minimize the most problematic types of errors at the expense of overall accuracy. It is essential not to confuse the linguistic meaning of a provision with its contribution to the content of the law. It may turn out that the contribution of a law is constituted by its linguistic meaning (or, more precisely, by some type of linguistic meaning), but this is a very controversial assertion about how the content of the law is determined. If, in dealing with the preliminary question of what interpretation of the law is sought, we simply merge the contribution of a statute with its linguistic meaning, then we forget, among other errors, the need for substantive argumentation for that claim. Conceptual arguments claim that a particular approach to legal interpretation derives from the concept of interpretation, the concept of law, the concept of authority, or some other relevant concept (e.g., Neale 2012 [Other Internet Resources]; see Berman 2009, 37-68). For example, as discussed in Section 2, some authors have argued that any approach to a text that does not seek the author`s intentions does not count as interpretation (Fish, 2005; Graglia, 1992).  Given these implications of well-known legal theories for defending theories of legal interpretation, it is worth returning to the arguments that legal interpretation theorists actually offer to support their favorite narratives.