Recommended Article on Constitutional Interpretation Applicable to Statutory Interpretation and Loper Bright (8/22/26)

Yesterday and today, I have been thinking about an article that implicates some of the interpretive issues I have been writing on post-Loper Bright. The article is: John O. McGinnis & Mike Rappaport, Originalism’s Better Meaning (Law & Liberty 8/13/26), here. Although developed in the context of constitutional interpretation and originalism, the article makes some points that seem to me applicable to statutory interpretation more broadly than the originalism spin.

First, the authors define the difference between interpretation and construction:

Interpretation is the process of determining the meaning of a constitutional provision. Construction begins only when that meaning is deemed indeterminate—that is, when it is thought to run out—and the decision must be made on grounds other than the provision’s original meaning.

I would restate that for statutory interpretation as follows (with changes in bold):

Statutory interpretation is the process of determining the meaning of a statutory provision. Statutory construction begins only when that meaning is deemed indeterminate—that is, when it is thought to run out—and the decision must be made on grounds other than the provision’s meaning as determined by statutory interpretation.

In these constructs, Chevron deference was construction rather than interpretation because it applied only when the meaning could not be determined and applied as a default rule to resolve cases before the courts without regard to the indeterminate meaning of the statute.

One interesting construct the authors deploy in the article is the “51-49 rule” which permits the “best” interpretation to be determined by the preponderance of the evidence standard (applying fact-finding concepts to a state of statutory interpretive ambiguity). In this construct, interpretation of a constitution (or statute) requires a confidence level for an interpretation to be at least 51%. The construction zone is between 50.9999% and 49.0001% where some default rule is required to resolve cases.

(Caveat: I don’t think that is a realistic range in statutory interpretation (or fact-finding for that matter); can anyone meaningfully distinguish between an interpretation that is 49.9% and one that is 50.1%?; but let’s just accept that construct for now; for my discussion of such ranges in valuation context, see John A. Townsend, Burden of Proof in Tax Cases: Valuation and Ranges—An Update, 73 Tax Lawyer 389 (2020).)

My concern is in the 51% and 49% levels of persuasion as to the best interpretation. Conceptually, under that construct, the Chevron doctrine would have applied only in the range of 50.9999% and 49.0001%, which under the construct used here would be in the construction zone rather than the interpretation zone. The construction zones require that the court construct (or fill the interpretive gaps) to resolve the case because it cannot determine the meaning of the statute. Loper Bright reversed one of the theoretical bases—a presumption of congressional delegation to the agency in ambiguity. But what Loper Bright did not do (and the ChatGPT Plus responses confirm) is instruct agencies how to resolve ambiguity which cannot meaningfully be interpreted out using the standard tools of statutory interpretation. Loper Bright seems to operate under the assumption that a court will always be able to interpret away any possible ambiguity (interpretive equipoise) in the statute. I think that notion is nonsense. I just encourage readers to filter the notion through their own experiences (judicial or otherwise) to see whether it makes sense that there can never be ambiguity after all the tools of interpretation are rigorously applied.

I today invoked ChatGPT Plus to work from the concepts in the article cited above to the application of Loper Bright to states of ambiguity (equipoise) as to interpretations of statutory text. I used a series of progressive prompts with each successive prompt seeking some development of the answer to the preceding prompt. 

My prompts were:

1. What is the difference between statutory or constitutional interpretation and statutory or constitutional construction?
2. Please provide more on the relationship of Loper Bright to the interpretation / construction distinction.
3. Accepting all you have said, how does Loper Bright work when a court finds that, after applying all the tools of statutory interpretation (including Skidmore), the court still finds the statutory text ambiguous, meaning that it is in interpretive equipoise as between the agency interpretation and the opposing interpretation?
4. Please address more specifically your comment about the taxpayer burden in deficiency or refund litigation possibly not function as the default interpretive rule to determine the case when the court is in interpretive equipoise as to the agency interpretation and the opposing interpretation.
5. Please pursue the concepts in the last paragraph across the Circuits.
6. Can the tax-specific canons of construction function as the post-Loper tie breaker in cases of true interpretive ambiguity (same as equipoise)?

You can review the ChatGPT Plus responses here. I think that in general the responses support the propositions that (i) Loper Bright does not instruct courts what to do in a state of ambiguity (interpretive equipoise); and (ii) some default substantive canon or canon-equivalent (as opposed to linguistic canon) is needed in that state of ambiguity, although the deployment of such canons is problematic. See Jasper L. Cummings, Jr., A Slippery Slope to False Doctrines (Tax Notes 7/13/26), here (discussing such canons in a tax context); which I highly highly recommend. 

I have read through the ChatGPT Plus responses and think that they are close enough to being reasonable. I have not checked the various case citations except that significant discussion relates to Flight Options LLC v. United States, 177 F.4th 709 (6th Cir. 2026), here, which I have blogged on some of the aspects recounted in the ChatGPT Plus responses. Interesting Concurring Opinion on Canons (or Maxims) of Statutory Interpretation (5/29/26; 8/21/26), here. The ChatGPT responses indicate, in response to Prompt 6 above, that “1. Flight Options is remarkably close to your exact question.”