This strategy of generating a theory of constitutional interpretation from a very general theory of interpretation, though perhaps interesting and promising in some contexts, is not one that is generally pursued by constitutional scholars. Instead, the focus is on explaining how constitutional interpretation relates to other forms of legal interpretation. And that is the course we will pursue in this entry. Narrowing our focus, then, we might begin by asking this important question: to what extent is constitutional interpretation like the interpretation of ordinary statutes? Perhaps the answer depends on whether the constitution consists entirely, partly or even at all, of written instruments, such as the Basic Law for the Federal Republic of Germany or Canada’s Constitution Act, 1982. There is, of course, no necessity that constitutional law includes, let alone exclusively, written instruments. A state’s constitution might consist almost entirely of important common-law rules, customs and conventions, as was often said of the United Kingdom for centuries. But this is not the norm. Usually a state’s constitution includes at least one central written instrument. Yet another point to bear in mind is that constitutional law may be different from the constitution, where the latter is meant to refer to a historical document like the United States Constitution. It can, as just noted, include various rules, customs and conventions, as well as years worth of interpretive decisions originating in court decisions revolving around the requirements of the relevant written instrument(s) . One might argue that the constitution, properly construed, includes these interpretive decisions. This is the view of David Strauss, who distinguishes, for purposes of United States law, between the written U.S. Constitution and the “small- c constitution: the constitution as it actually operates, in practice” (Strauss 2010: 35). The “living constitution,” he suggests, is the two combined. Whether this is true, or whether such decisions are better classified as part of constitutional law (not the constitution itself) is an interesting question with which we needn’t be concerned. The point remains that discussions of constitutional interpretation almost invariably focus on the interpretation of written constitutional instruments—and it is on the interpretation of these that we will focus.

A further, central issue that figures prominently in discussions about constitutional interpretation is this: is that practice, when pursued properly—i.e., as an exercise of interpretation, not something else masquerading as interpretation—exclusively a matter of attempting to retrieve, so as to conserve and apply, existing meaning(s)? If so, in what do such existing meanings consist? Is an attempt to interpret a constitutional text perhaps an attempt to discern the intentions of its authors? If this is the route one must take, then yet another question immediately arises: who precisely are to count as the constitution’s authors? Those who wrote it up? Those who approved it at a special constitutional convention? Those, e.g., individual state governments, who later ratified what the authors had earlier created, as occurred in the United States? These last two answers assume, however, forms of constitutional creation that are not always present. Constitutions sometimes come into existence in the absence of an originating convention, and often do so without anything remotely like a formal process of ratification. Sometimes constitutions come about through the normal activities of legislative bodies like Parliament or the Bundestag. At other times, they are simply imposed by one political regime and taken up later by a new regime, or eventually accepted by a population which may initially have struggled against the original imposition but now accepts both the legitimacy of the imposing regime and its constitution. This latter scenario might be thought to raise yet another possibility: that the true authors of a constitution are, in reality, “the people” whose constitution it is. This, however, stretches the idea of authorship beyond the bounds of intelligibility. “The people” may reasonably be said to have accepted, or perhaps even consented to or adopted, the constitution, and these facts may serve a crucial role in determining a constitution’s legitimacy. But this is a far cry from saying that the constitution belongs to them as the creative product of their authorship.

So the identity of the relevant community of understanding can be crucial. Yet another question that emerges, once we begin to focus on authorial intentions, is this: should we sometimes, or perhaps even always, count the purposes the authors sought to achieve by enacting what they did? But which purposes and at which level of generality? In some very general sense, the purpose of every constitutional provision is to effect the realization of justice, or at least a reasonable balance of all the relevant values and principles at play in creating a constitution. But presumably this is not much help in settling difficult interpretive questions. So perhaps we must look for something more specific, e.g., the goal of fostering a vibrant democracy, which arguably is one of the central purposes behind free-expression guarantees? But is this specific enough? Or must we look for something even more concrete? Must we also count as relevant the particular applications the authors intended their words to cover—the specific kinds of things they intended to protect, prohibit or permit, e.g., the freedom to express a political opinion in a newspaper? If intended applications don’t count, then we’ll need to know why. If they do count, then we’re faced with further questions: what if we have very good evidence that the authors were actually very poor draftsmen, selecting words whose conventional understandings may lead to applications that would thwart or hinder achievement of the very goals and purposes they intended or hoped to realize? How are constitutional interpreters to deal with these conflicting intentions? And finally, how does one interpret when, as is all too often the case, we have inconclusive evidence as to what the relevant authors’ intentions might have been? Perhaps some of the authors intended X, while others intended Y.

So perhaps allowing for so-called innovative interpretation actually results in a type of activity essentially different from what we can meaningfully call “constitutional interpretation.” That is, maybe what we have in such cases is not constitutional interpretation but revision, amendment or construction. In all such cases of so-called innovative constitutional interpretation, the existing constitution will simply have been replaced, in part, with something else newly created by the act(s) of the interpreter(s). Those who begin to feel uneasy about such a prospect—i.e., the prospect that innovative judicial interpreters are actually changing the constitution while purporting to interpret it—have at least three options. One is simply to declare such innovative interpretations out of bounds for the judiciary, an option taken by many originalists. But this is not a strategy open only to such theorists. It is also, somewhat paradoxically, a view endorsed by Ronald Dworkin, one of originalism’s most forceful critics. Dworkin’s distinction between “concepts” and “conceptions” (1977) and his claim that constitutional authors (often) intend to enact provisions embodying the former but not the latter, allows him, he believes, to claim that the meanings of the rights provisions of a constitution—i.e., the abstract concepts or principles of political morality it embodies—have not changed, despite the radically different constructive interpretations of those abstract concepts and principles endorsed by constitutional interpreters over time. On this view, an innovative interpretation is one that introduces a new interpretation of an unchanged abstract principle embodied in a constitution whose authorial meaning remains unaltered.