Part I briefly describes the interpretation/construction distinction as an artificial construct - a fiction." The many commentaries on the subject encompass such a wide range of positions that the distinction, to the extent it truly exists at all, does so in the eye of each individual beholder. In Part II, I argue that the distinction, even if understood as a fiction, is nevertheless relevant because it can be used to bridge the expanse between originalist and nonoriginalist (or, if one prefers, between "strong" and "weak" originalist) theories of American constitutional interpretation. Put another way, the fiction is useful. In Part III then, I turn to the idea of usefulness. Focusing on how the distinction may be relevant, I suggest that maintaining a distinction between interpretation and construction is ultimately positive because it offers a new language system in which to continue a more meaningful debate between different interpretive theories. In other words, the appeal of the distinction is its ability to move constitutional commentary away from ideological entrenchment to a more meaningful discussion about both the process and substance of constitutional adjudication.
27 Const. Commentary 71 (2010)